Jackson v. Albright

120 So. 3d 37, 2013 WL 3811812, 2013 Fla. App. LEXIS 11587
CourtDistrict Court of Appeal of Florida
DecidedJuly 24, 2013
DocketNo. 4D10-5142
StatusPublished

This text of 120 So. 3d 37 (Jackson v. Albright) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. Albright, 120 So. 3d 37, 2013 WL 3811812, 2013 Fla. App. LEXIS 11587 (Fla. Ct. App. 2013).

Opinion

WARNER, J.

The Estate of Kim Douglas appeals a final judgment in a personal injury action in favor of the defendant, Robert Al-bright.1 It claims that the court erred in allowing the defendant to question Douglas on a prior unrelated litigation settlement. The trial court allowed inquiry into the settlement because Douglas had opened the door to such questioning by claiming that she did not have the resources to continue medical treatment for her injuries in the accident on which this suit is based. We agree with the trial court that the defense could question Douglas on the settlement as it was not being offered to prove litigiousness but to counter her own testimony regarding her lack of funds to seek medical treatment. We affirm as to this issue, as well as to the remaining issues in the case, but do so without prejudice to the estate raising a motion for relief from judgment based on a claim of fraud on the court with respect to the alteration of a surveillance video.

This case arises out of a car collision which occurred in March of 2001. At the trial, defendant Robert Albright testified that his car was bumped from the side by another vehicle, and his vehicle was pushed into the rear end of Kim Douglas’s vehicle in stop-and-go traffic. Albright testified that he never left his lane prior to any impact. The defense offered photographs of the slight damage done in the accident to all three vehicles, including Douglas’s. Albright testified that Douglas said she was okay after the accident, left almost immediately, and did not appear to be in pain. Douglas was not taken to the emergency room after the accident, and she drove herself home.

Douglas alleged that she had a strain/ sprain injury to her neck and back and that she suffered herniated discs as a result of the accident. She testified that she saw a chiropractor, Dr. Grassi, the day after the accident and went back to him in a couple of months. She complained of neck pain, arm pain, blurred vision, headaches, and numbness. Dr. Grassi recommended physical therapy, but Douglas only sporadically made appointments to get therapy and then quit because the therapy made her feel worse. An MRI taken several months after the accident showed bulging discs in her cervical spine but no herniation. She saw an orthopedic surgeon ten months after the accident and complained of radiating pain. She also saw a neurologist who performed various tests, all of which had results within normal limits. He, too, recommended physical therapy, which Douglas did not have.

Two and a half years after the accident, in November 2003, she saw a neurosurgeon who ordered another MRI which now showed herniated cervical discs. He recommended a cervical discetomy. She did not have the surgery until 2008. In the meantime, she was seen and treated by two pain management doctors and prescribed multiple drugs to alleviate pain. This went on for several years, and she testified that at the time of trial she was spending up to $1,700 per month on pain [39]*39medications. She testified that she could not afford to go to more than one doctor, and she was not ready for surgery. At other times in her testimony, she said she didn’t have enough money to obtain treatment or drugs.

At the beginning of trial, the defense counsel advised the court that Douglas may try to explain her sporadic medical care by claiming financial inability to afford treatment. The defense requested that if she injected financial status into the case, then the defense should be permitted to bring out the fact that she had recovered a large monetary settlement in an unrelated case less than a year before the accident. The trial court agreed and explained that “if money gets raised then once it’s thrown down on the floor then you get to bring up any [rebuttal] information you have about money, lack of money.”

When Douglas raised her lack of funds to seek medical treatment or surgery, defense counsel then sought to question her about the settlement she obtained shortly before the accident in this ease. Plaintiff objected on the grounds that it would show litigiousness of the plaintiff and that it would be overly prejudicial. The trial court overruled the objection, and defense counsel asked Douglas whether she had received a settlement of a lawsuit in the amount of $420,000. She admitted she had; however, after paying her attorney, purchasing a house, and trying to reestablish herself and her children after a divorce, she had used up all of the money.

The defense took the position that Douglas had not sustained a permanent injury from the accident and had only sporadic treatment for her injuries. The defense medical expert testified that Douglas suffered a strain, but not a herniation, in the accident. The doctor was of the opinion that a degenerative condition unrelated to the accident necessitated the neck surgery. The defense also offered into evidence a surveillance video of Douglas which showed her bending, squatting down to look at the tire of her car, pulling an air hose to put air in her tires, and carrying packages. The doctor viewed the surveillance film and testified that it showed Douglas performing motions that she would not do in his office. He testified that the video was inconsistent with someone in pain. He did not believe she sustained a permanent injury.

The jury returned a verdict in which it answered “no” to the question, “Did the defendant, Robert Albright, negligently operate the motor vehicle he was driving and, if so, was such negligence a legal cause of loss, injury or damage sustained by the plaintiff, Kim Douglas?” The court entered final judgment on the verdict.

After the verdict, Douglas filed a motion for sanctions and new trial in which she contended that she had the surveillance video examined by a forensic expert who was of the opinion that the video had been edited. She also raised other claims in the motion for new trial. The trial court denied the motion for new trial without a hearing. Douglas now appeals.

Douglas claims that the trial court erred in allowing the defense to question her about her prior settlement, claiming that it showed prior litigiousness, which is prejudicial and inadmissible, citing Zabner v. Howard Johnson’s Inc. of Florida, 227 So.2d 543, 546 (Fla. 4th DCA 1969). Zabner, however, is inapposite to the facts of this case. In Zabner, a plaintiff sued for personal injuries sustained when her gum was pierced by a walnut shell concealed in ice cream. The defense sought to impeach her by interrogating her on the fifteen prior lawsuits she had brought, some for personal injuries unrelated to the present [40]*40claim and some for commercial matters. Our court determined that bringing out prior litigation history simply to prove a plaintiffs litigiousness was a character attack and had no other purpose than to prejudice the jury. We recognized, nevertheless, that under some circumstances prior litigation was the proper subject of cross-examination, such as when the plaintiffs physical condition may be affected by prior injuries, which were the subject of prior lawsuits. Thus, where the issue was relevant for a purpose other than impeachment as to litigiousness, the trial court did not necessarily abuse its discretion in admitting such evidence.

“[Ajdmission or rejection of impeaching testimony is within the sound discretion of the trial court.” Winner v. Sharp, 43 So.2d 634, 635 (Fla.1950). Here, the trial court had considered the issue prior to the commencement of trial.

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Related

Leslie v. Higgason
779 So. 2d 470 (District Court of Appeal of Florida, 2000)
Zabner v. Howard Johnson's Incorporated of Florida
227 So. 2d 543 (District Court of Appeal of Florida, 1969)
Rodriguez v. State
753 So. 2d 29 (Supreme Court of Florida, 2000)
Winner v. Sharp
43 So. 2d 634 (Supreme Court of Florida, 1949)
Companioni v. City of Tampa
51 So. 3d 452 (Supreme Court of Florida, 2010)
Siegel v. State
68 So. 3d 281 (District Court of Appeal of Florida, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
120 So. 3d 37, 2013 WL 3811812, 2013 Fla. App. LEXIS 11587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-albright-fladistctapp-2013.