Office Depot, Inc. v. Miller

584 So. 2d 587, 1991 Fla. App. LEXIS 7085, 1991 WL 134054
CourtDistrict Court of Appeal of Florida
DecidedJuly 24, 1991
Docket90-1832
StatusPublished
Cited by35 cases

This text of 584 So. 2d 587 (Office Depot, Inc. v. Miller) 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
Office Depot, Inc. v. Miller, 584 So. 2d 587, 1991 Fla. App. LEXIS 7085, 1991 WL 134054 (Fla. Ct. App. 1991).

Opinion

584 So.2d 587 (1991)

OFFICE DEPOT, INC., Appellant,
v.
Ellen MILLER, Appellee.

No. 90-1832.

District Court of Appeal of Florida, Fourth District.

July 24, 1991.

Joseph Consolazio, Jr., of Riley Knoerr & Consolazio, Fort Lauderdale, for appellant.

Ronald D. Poltorack of Law Offices of Ronald D. Poltorack, P.A., Fort Lauderdale, for appellee.

ANSTEAD, Judge.

Appellant, Office Depot, Inc., challenges the order granting appellee's motion for a new trial. We affirm.

FACTS

Ellen Miller sued Office Depot as a result of an alleged accident on Office Depot's premises on November 4, 1987, when a number of heavy boxes fell on her. She was 55 at the time and claimed the accident caused severe neck injuries. Office Depot responded that the boxes were light and caused her no injury.

*588 Based on Miller's testimony as well as that of a customer and an employee of Office Depot, the trial court directed a verdict in Miller's favor on the issue of liability. Miller testified as to the accident and the onset of severe problems with her neck. She admitted that prior to the accident, she had injured her shoulder and arm wallpapering her apartment. She also admitted that she had hurt her back moving a sofa bed, and again in 1988 in a car accident.

Dr. Stephen Silverstein testified by deposition that he treated Miller in 1986 for shoulder and back pain which she aggravated by wallpapering, but she mentioned nothing about her neck. Silverstein diagnosed tendonitis and treated the shoulder accordingly. Silverstein and members of his staff also saw Miller in connection with the subject accident and prescribed pain relievers and physical therapy.

Dr. Stephen Nemerofsky, an orthopedic surgeon, and Dr. Paul Gelety, a neurosurgeon, testified that Miller suffered severe neck injuries, including two herniated discs as a result of the Office Depot accident. Dr. Gelety had surgically repaired the discs but both doctors agreed she would be permanently impaired.

Dr. Gordon McAllister, an orthopedic surgeon, testified by deposition that he had examined Miller at the request of defense counsel and was of the opinion that the cervical disc condition preceded her Office Depot accident. He offered no opinion on any aggravating effect the accident may have had on her condition.

Dr. Paul Flatten, a neurologist, testified that he examined Miller at the request of defense counsel and was given test results and reports prepared by Miller's other doctors, including Dr. Silverstein. Flatten originally felt that the subject accident caused Miller's disc herniation and submitted a detailed medical report and testified in a pretrial deposition to that effect. However, before trial he was contacted by defense counsel and asked to again review Miller's medical history including the records of Dr. Silverstein. As a result, he stated that he had reversed his opinion, and now felt that she was suffering from progressive degeneration of the cervical discs wholly unrelated to the subject accident. He stated that although he had the medical reports all along, he had failed to review them before defense counsel's contact shortly before trial.

Miller's counsel objected to Flatten's testimony on the grounds that he had not been advised of Flatten's reversal of opinion. During a side-bar conference, defense counsel told the judge that he did not alert Miller of Flatten's changed testimony because nobody asked for such information. Defense counsel maintained that Miller would not be prejudiced since she could impeach Flatten with his prior contrary statements and written reports. While expressing concern, the trial judge allowed Flatten to testify, stating that he would entertain appropriate motions at a later time. On cross examination, Miller's counsel questioned Flatten extensively about his prior report and deposition testimony.

The jury returned a verdict finding that Office Depot's negligence did not cause Miller any injury.

NEW TRIAL ORDER

The trial judge granted Miller's motion for new trial, and in a separate order explained the reasons:

1. The new trial was granted pursuant to Rules 1.530 and 1.540, Fla.R.Civ.P., because of misrepresentations and other misconduct by Defendant with respect to obligations of the Defendant pursuant to Rule 1.360(b), Fla.R.Civ.P., coupled with the direct recanting of deposition testimony by Defendant's expert witness, Paul Flatten, M.D., at trial which totally surprised Plaintiff and resulted in a trial by ambush on the part of Defendant.
2. During the course of the pretrial proceedings, Defendant sought and obtained an order requiring Plaintiff to submit to an examination by Paul Flatten, M.D. Plaintiff was so examined by Dr. Flatten.
3. In order to discover the opinions of Defendant's expert, Paul Flatten, M.D., Plaintiff not only requested a copy of Dr. Flatten's report, but Plaintiff also deposed Dr. Flatten. This discovery revealed *589 that Dr. Flatten was of the opinion that a causal relationship existed between the accident in suit and the injuries, including an operated herniated disc.
4. Notwithstanding the deposition testimony and report of Dr. Flatten, Defendant knowingly presented testimony at trial by Dr. Flatten that in fact no causal relationship existed between the accident in suit and the herniated disc. Plaintiff was understandably surprised by the this (sic) total change in opinion by Defendant's expert and it was improper for Defendant to use this testimony when the "detailed written report of the examiner setting out his findings, including results of all tests made, diagnosis and conclusions" which Defendant was required to give to Plaintiff pursuant to Rule 1.360(b), Fla.R.Civ.P., failed to contain any finding or conclusion that injury and the deposition testimony affirmatively contradicted the trial testimony.
5. Moreover, absent the surprise recantation by Dr. Flatten, there was no evidence whatsoever in the record at trial to support the jury verdict. The jury verdict was rendered expressly on the issue of damages including proximate causation because there was a direction of verdict on the issue of the negligence of the Defendant. Therefore, the verdict was not only against the manifest weight of all properly admissible evidence, but there was no proper evidence whatsoever of a lack of proximate causation.
6. Under these facts and circumstances, the Court is firmly of the mind that justice requires that a new trial be afforded to Plaintiff. Any other result would serve only to sanction misconduct, the element of surprise and the conduct of trial by ambush which this Court refuses to condone.

LAW

Ordinarily, trial judges enjoy broad discretion in addressing motions for new trial. Baptist Memorial Hosp., Inc. v. Bell, 384 So.2d 145 (Fla. 1980). However, the latitude afforded them because of their superior vantage point during trial is circumscribed when the motion concerns purely legal matters. American Employers' Insur. Co. v. Taylor, 476 So.2d 281 (Fla. 1st DCA 1985); City of Hollywood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977). Thus, the closer an issue comes to being purely legal in nature, the less discretion a trial court enjoys in ruling on a new trial motion. It has also been held that a stronger showing of abuse of discretion is required to overturn an order granting a new trial than an order denying a new trial. Cloud v. Fallis, 110 So.2d 669 (Fla. 1959).

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Cite This Page — Counsel Stack

Bluebook (online)
584 So. 2d 587, 1991 Fla. App. LEXIS 7085, 1991 WL 134054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-depot-inc-v-miller-fladistctapp-1991.