Miller v. Affleck

• Decision Date: 30 November 1993
• Docket Number: No. 92-2766,92-2766
• Citation: 632 So.2d 79
• Parties: 18 Fla. L. Weekly D2531 Helen Marie MILLER and Dale Wendell Miller, Appellants/Cross-Appellees, v. John H. AFFLECK, M.D., and Hodnette Medical Center Clinic d/b/a Medical Center Clinic, P.A., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 79

632 So.2d 79

18 Fla. L. Weekly D2531

Helen Marie MILLER and Dale Wendell Miller, Appellants/Cross-Appellees, v. John H. AFFLECK, M.D., and Hodnette Medical Center Clinic d/b/a Medical Center Clinic, P.A.,

Appellees/Cross-Appellants.

No. 92-2766.

District Court of Appeal of Florida,

First District.

Nov. 30, 1993.

Opinion Denying Rehearing and

Clarifying Decision Jan. 20, 1994.

Kerrigan, Estees, Rankin & McLeod, P.A., Pensacola, and Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin &amp Perwin, P.A., Miami, for appellants/cross-appellees.

Richard B. Collins of Collins & Truett, Tallahassee, and Ralph O. Anderson of Hicks, Anderson & Blum, P.A., Miami, for appellee, John H. Affleck, M.D.

James M. Wilson of Wilson, Harrell & Smith, P.A., Pensacola, for appellees, Hodnette Medical Center and John Affleck, M.D.

WOLF, Judge.

Appellants, Helen Miller and Dale Miller, plaintiffs in the trial court, appeal from an order granting a new trial after the jury returned a verdict in favor of appellants in a medical malpractice action. Appellees, John H. Affleck, M.D., and Hodnette Medical Center d/b/a Medical Center Clinic, P.A., cross appeal alleging 1) that the trial court erred in not directing a verdict for the defendants, and 2) that the trial court abused its discretion in allowing the appellants to argue to the jury that Dr. Affleck could not support his position with medical treatises. As to the first issue on cross appeal, we find that there was sufficient evidence of negligence on the part of the defendants that the jury could reasonably return a verdict for the plaintiffs and, therefore, the trial court did not err in denying the defendants' motion for directed verdict. The second issue raised by the cross appellants was not properly preserved for appeal. We, therefore, affirm the cross appeal without further discussion. As to the direct appeal, we find that the trial court abused its discretion by granting appellee a new trial. We, therefore, reverse and remand for entry of a final judgement in favor of the appellants.

Appellants initiated a malpractice action arising from a simple mastectomy performed by appellee, Dr. Affleck, on appellant, Helen Miller. The appellants' theories of liability were (1) the simple mastectomy performed by Dr. Affleck was unnecessary, and (2) Mrs. Miller's consent to the mastectomy was not informed consent under Florida law because it was based on misrepresentations made by the doctor. Conflicting evidence was presented as to both issues during the jury trial. After trial, the jury returned a verdict in favor of Mrs. Miller in the amount of $1.7 million, and found for Mr. Miller in the amount $200,000.

The appellees moved for a new trial. The trial court granted the motion, stating that the verdict was contrary to the manifest weight of the evidence and citing to three errors during the trial which justified a new trial. The order never stated in what way the verdict was against the manifest weight of the evidence. Two of the three alleged erroneous decisions cited by the trial judge were never objected to by appellees.

The general standard of review of an order granting a new trial is whether the trial court has abused its discretion. Smith v. Brown, 525 So.2d 868 (Fla.1988). If an abuse of discretion has occurred, however, the appellate court will reverse the order granting a new trial. Lee v. Southern Bell Tel. and Tel. Co., 561 So.2d 373 (Fla. 1st DCA 1990). For instance, where a new trial is granted because the verdict was against the manifest weight of the evidence, a trial court may not substitute its view of the evidence for that of the jury. Florida First Nat'l Bank of Jacksonville v. Dent, 404 So.2d 1123 (Fla. 1st DCA), dismissed, 411 So.2d 381 (Fla.1981). A verdict can be found to be against the manifest weight of the evidence only when it is clear, obvious, and indisputable that the jury was wrong. Lee, supra at 580, citing Crown Cork & Seal Co., Inc. v. Vroom, 480 So.2d 108 (Fla.1985). In addition, an order granting a new trial will not be given the same deference where the trial court fails to state the grounds for granting a new trial with specificity. Keene v. Chicago Bridge and Iron Co., 596 So.2d 700 (Fla. 1st DCA 1992). In the instant case, the trial court failed to state why he felt that the verdict was against the manifest weight of the evidence, nor does our independent review of the record reveal that a reasonable jury could not have returned a verdict for the plaintiffs based on the conflicting evidence which was presented. We, therefore, find that the order granting a new trial should not have been granted based on a lack of evidence to support the verdict. See Lee, supra at 373.

The other reasons stated for granting a new...