Grau v. Branham, 4D99-0662.
| Decision Date | 26 April 2000 |
| Docket Number | No. 4D99-0662.,4D99-0662. |
| Citation | 761 So.2d 375 |
| Parties | Gerard D. GRAU, M.D., and Gerard D. Grau, M.D., P.A., Appellants, v. Stanley B. BRANHAM, Appellee. |
| Court | Florida District Court of Appeals |
Jeanne Brady of Brady & Brady, P.A., Boca Raton, and Philip D. Parrish of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for appellants.
Richard A. Barnett and Donald A. Tobkin of Richard A. Barnett, P.A., Hollywood, for appellee.
Gerard D. Grau, M.D. and Gerard D. Grau, M.D., P.A. (collectively "Grau") timely appeal from an adverse jury verdict in a medical malpractice action brought by Stanley B. Branham. He raises several points on appeal, including that the trial court erred in allowing Branham's counsel to impeach an independent medical witness about his drug use; that fundamental error occurred when Branham's counsel made references to Grau and Nazi Germany; and that the court erred in allowing Branham's attorney to read expert testimony from the first trial. We affirm on all points raised.
This appeal stems from the retrial between the parties. Branham accused Grau of breaching the standard of care when he operated on Branham's right leg. He also claimed that Grau did not receive his informed consent prior to the operation.
At their first trial, the jury found in favor of Branham. However, in Grau v. Branham, 626 So.2d 1059 (Fla. 4th DCA 1993), this court reversed the verdict because Branham was allowed to present the deposition testimony of two experts whose testimony was based on mid-trial examinations of Branham. These examinations were taken in contravention of several orders of the trial court regarding discovery.
At retrial, Branham's counsel, Donald A. Tobkin, asked the court to allow him to read these experts' testimony from the first trial in lieu of presenting their live testimony. Grau objected on the ground that he had not had an adequate opportunity during the first trial to cross-examine them. Branham pointed out that he disclosed these experts before trial. The court, implying that Grau could have redeposed these experts during the six years that elapsed since the first trial, let him use this prior testimony.
Also at the first trial, Grau, during his case-in-chief, called Dr. William Cohen, a physician who had operated on Branham's right leg in 1977, twelve years before Grau's operation. Dr. Cohen testified that the prior operation stemmed from Branham's complaints of pain, and not for cosmetic reasons, as Branham claimed. At retrial, however, Branham called Dr. Cohen during his case-in-chief. He asked Dr. Cohen whether, after the prior surgery, he had to surrender his medical license; Branham was attempting to show that Dr. Cohen had a drug addiction. Grau immediately objected that the question was irrelevant and prejudicial, especially because of the twelve-year time lapse between the first surgery and the subsequent surrendering of his license.
The court initially sustained the objection but allowed Branham to ask Dr. Cohen regarding other matters1 outside the jury's presence. During this exchange, it became known that Dr. Cohen previously testified as to his dependency in a personal injury lawsuit that he, as a plaintiff, had brought. Finding that Dr. Cohen made his dependency a matter of public record by virtue of his prior lawsuit, the court changed its decision and overruled Grau's objection. The jury then heard Dr. Cohen testify that he voluntarily surrendered his license in exchange for entering a drug addiction program in 1989, and that he suffers from a mixed chemical dependency.
Branham also called Grau as a witness. Grau testified that he showed Branham an illustration from Pernkopf's Atlas on Anatomy before obtaining his informed consent. Branham's attorney then asked Grau:
Eduardo Pernkopf did his work between the years of 1934 and 1945 on Nazi concentration camp victims and sliced them open to do this kind of work, is that not correct?
Grau objected that the question was "really inappropriate." The court sustained the objection. Branham's lawyer again asked him if Pernkopf completed this work "between 1934 and 1945 in Nazi occupied areas." The court sustained Grau's general objection. Thereafter, he asked Grau if a drawing of a dissection in the Atlas showed no fat on the skin. After Grau replied "yes," Branham's lawyer asked, "Well the reason there is no fat there is because [sic] that was taken of a person that was starved before the dissection was done?" Again, the court sustained Grau's general objection. Grau did not move for a mistrial nor seek a curative instruction after the court sustained his objections.
Grau also objected to various comments and argument made by Branham's counsel throughout trial. For example, Grau objected, albeit generally, when the attorney accused him of causing his professional corporation to fold during the pendency of the litigation; stealing Branham's records from Dr. Cohen; and performing a "botched" surgery. He also objected when asked why he would not let Branham inspect his medical library before trial, and when accused of being greedy. Grau's general objections to all of the above comments and questions were sustained.
Overall, both sides presented expert and other conflicting testimony. The jury returned a verdict in Branham's favor and awarded him $1.8 million. Following the denial of his post-trial motions, Grau appealed.
Dr. Cohen's impeachment
Grau first argues that Branham should not have been allowed to ask Dr. Cohen about his drug addiction in front of the jury. He maintains the evidence was irrelevant and unduly prejudicial. Branham contends that the testimony was relevant to impeach Dr. Cohen's testimony that the prior surgery was not for cosmetic reasons, especially since Branham claimed it was. He argues evidence that Dr. Cohen was addicted to narcotics at the time was relevant to, and probative of, Dr. Cohen's ability to determine whether the surgery was necessary.
As a general rule, relevant evidence is that which tends to prove or disprove a material fact. § 90.401, Fla. Stat. (199...
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