Silva v. Nightingale
| Decision Date | 16 April 1993 |
| Docket Number | No. 92-673,92-673 |
| Citation | 619 So.2d 4 |
| Parties | 18 Fla. L. Week. D989 Marga R. SILVA, Appellant, v. Theresa Knight NIGHTINGALE, Appellee. |
| Court | Florida District Court of Appeals |
Jackson O. Brownlee of Brownlee, Hoffman & Jacobs, P.A., Orlando, for appellant.
Robert R. Jack and Susan W. Tolbert of Beers, Jack, Tudhope & Wyatt, Maitland, for appellee.
Marga R. Silva appeals a judgment entered following a jury verdict in favor of Theresa Knight Nightingale. Nightingale admitted responsibility for rear-ending Silva's automobile, but the jury found that Silva sustained no permanent injuries or unreimbursed expenses as a result of the accident. Silva argues, inter alia, that the judgment should be vacated because Nightingale's closing argument included improper comments. We agree, vacate the judgment, and remand for a new trial.
Improper comments made by counsel for both plaintiffs and defendants, especially in trials involving personal injuries, are arising as points on appeal with alarming and increasing frequency. In some cases, the evidence clearly supports the verdict notwithstanding the comments made by counsel. Though the evidence submitted by Silva in support of her case-in-chief was weak, and though Nightingale might have prevailed had her counsel's comments been omitted, we cannot hold as a matter of law that the comments had no effect upon the jury's verdict.
A new trial is required "if the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury...." Tyus v. Apalachicola Northern R.R. Co., 130 So.2d 580, 587 (Fla.1961); Nazareth v. Sapp, 459 So.2d 1088 (Fla. 5th DCA 1984).
Silva complains, inter alia, about the following comments made during Nightingale's closing argument:
(1) While referring to what Silva had said to one of her treating physicians, counsel stated, "I don't believe that."
(2) While discussing Silva's testimony that she was thrown back and forth during the collision, counsel stated, "Forget that, forget that that ever even was said."
(3) In discussing the testimony given by the chiropractor, counsel stated, "It's well known chiropractors will give a permanent impairment rating much quicker than any other physician."
(4) In remarking on Silva's inability to perform her work as a housekeeper at Walt Disney World, counsel stated, "To be quite frank I have made beds myself and I have vacuumed and I don't find it to be a debilitating experience."
(5) While speculating on the reasons Silva sought additional medical treatment, counsel stated, "I'm sure there were some legal considerations, too."
Only comments (3) and (4) were the subject of objections by trial counsel, while all five of the comments were mentioned in a motion for new trial. However, where prejudicial conduct in its collective import is so extensive as to pervade the trial, a new trial should be awarded regardless of the want of an objection. Tyus, 130 So.2d 580.
In Moore v. Taylor Concrete & Supply Company, Inc., 553 So.2d 787, 792 (Fla. 1st DCA 1989), the court stated, "It is axiomatic that a lawyer's expression of his personal opinion as to the credibility of a witness, or of his personal knowledge of facts in the case, is fundamentally improper." In each of the statements quoted above, Nightingale's counsel stated his own opinion, either expressly or by inference, as to the credibility of witnesses. The credibility of witnesses is for the jury to determine. While arguments may be made to point out conflicts in testimony, and while evidence may be introduced to impeach a witness's testimony, ...
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