Good Samaritan Hosp. Ass'n, Inc. v. Saylor, s. 85-246

• Citation: 11 Fla. L. Weekly 1989,495 So.2d 782
• Decision Date: 17 September 1986
• Docket Number: 85-539 and 85-1595,Nos. 85-246,s. 85-246
• Parties: 11 Fla. L. Weekly 1989 GOOD SAMARITAN HOSPITAL ASSOCIATION, INC., Appellant, v. Auvel SAYLOR and Margaret Saylor, as Personal Representatives of the Estate of Margaret Eiler, deceased, Appellees.
• Court: Court of Appeal of Florida (US)

Page 782

495 So.2d 782

11 Fla. L. Weekly 1989

GOOD SAMARITAN HOSPITAL ASSOCIATION, INC., Appellant, v. Auvel SAYLOR and Margaret Saylor, as Personal Representatives of the Estate of Margaret Eiler, deceased, Appellees.

Nos. 85-246, 85-539 and 85-1595.

District Court of Appeal of Florida,

Fourth District.

Sept. 17, 1986.

Rehearing Denied Oct. 31, 1986.

Steven R. Berger of Steven R. Berger, P.A., Miami, and Peterson & Fogarty, P.A., West Palm Beach, for appellant.

Larry Klein of Klein & Beranek, P.A., and Theodore Babbitt of Babbitt, Hazouri & Phillips, P.A., West Palm Beach, for appellees.

DELL, Judge.

Appellant seeks reversal of a final judgment awarding appellees $4,000,000 for the wrongful death of the decedent as the result of medical malpractice, and of an order awarding appellees' attorney's fees of $1,100,000. Appellant and other defendants not parties to this appeal ¹ admitted liability for negligence, and this case went to the jury solely on the question of damages. Appellant claims that the jury reached an excessive verdict because of multiple errors committed at trial.

Appellant first suggests that juror misconduct and the comments of appellees' counsel during voir dire examination caused the jury to award excessive damages. We dispose of this argument summarily because appellant's counsel, ² together with counsel for the other defendants, entered into a stipulation with appellee that waived these points of error:

We have a stipulation we would like to put on the record that will shorten the trial. The parties have agreed--and I am saying this in the presence of everybody, for the record--that providing the Plaintiff drops the claim for punitive damages, the Defendants will waive any motion for mistrial and will waive a request for a second jury to hear damages only and will agree that punitive damages or, [if] in fact, there ever was a punitive damage claim [it] would not be mentioned to this jury, and the Defendants do waive any error or any prejudice by virtue of having had this jury hear the testimony they have heard thus far. [Emphasis added.]

Appellant also argues that the trial court erred when it refused to instruct the jury that the amount awarded in damages would not be subject to federal income tax. The Second District Court of Appeal in Poirier v. Shireman, 129 So.2d 439 (Fla. 2d DCA 1961) concluded that the giving of such an instruction is discretionary. However, in St. Johns River Terminal Co. v. Vaden, 190 So.2d 40 (Fla. 1st DCA 1966), the court affirmed the denial of a request for an instruction on income tax and stated:

It appears that the decided majority of courts in America support the view that in fixing damages for accrued loss of earnings or for impairment of future earning capacity because of personal injury, the income tax consequences of the injury and the award should not be taken into consideration; on the contrary, the award of damages should be based upon the plaintiff's gross earnings or earning capacity and should not be reduced because of any income tax saving which may result to the plaintiff because of the fact that the damages will be exempt from income tax. Courts so ruling premise their conclusion on the theory that income tax liability of the plaintiff is not pertinent to the damage issue, being a matter strictly between the plaintiff and the taxing authority and of no legal concern to the defendant; that the amount of income tax which might become due on a person's prospective future earnings is too conjectural to be considered in fixing the damages to which he may be otherwise entitled; that to introduce the income tax feature into a lawsuit seeking damages would be unduly complicating and confusing.

Id. at 41-42 (footnotes omitted).

We cited St. Johns River Terminal Co. v. Vaden with approval in Leaseco, Inc. v. Bartlett, 257 So.2d 629 (Fla. 4th DCA 1971). We find no error in the trial court's refusal to give the requested instruction.

Appellant next contends that during closing argument, appellees' counsel displayed excessive emotional behavior in the courtroom, made improper references to the value of a mother, and expressed his personal belief in the righteousness of the cause. The trial transcript demonstrates that appellees' counsel requested a brief recess during argument, but does not establish that he made this request because of an inability to control his emotions, or that the trial court granted the recess on that basis. We find no error in the trial court's denial of appellant's motion for a mistrial based on this action. Since appellant did not object to counsel's argument concerning the value of a mother, the error, if any, was waived. The record does not demonstrate that appellees' closing argument exceeded the wide latitude which is generally permitted during argument.

[I]t must be expected that counsel during closing summation to the jury will engage in sometimes emotional and heated debate. Counsel are accorded a wide latitude in making arguments to the jury, and unless their remarks are highly prejudicial and inflammatory, counsel's statements made to the jury during closing arguments will not serve as a basis for reversing a judgment.

Metropolitan Dade County v. Dillon, 305 So.2d 36, 40 (Fla. 3d DCA 1974).

We are satisfied that the emotional aspects of this trial were no greater than those that understandably pervade a trial of this type. Although the jury awarded a substantial amount to each of the decedent's children, the record contains competent evidence supporting the verdict.

A party who assails the amount of a verdict as being excessive, has the burden of showing it is unsupported by the evidence, or that the jury was influenced by passion or prejudice. A verdict which has been approved by the trial court as to amount should not be disturbed on appeal if it has a reasonable...