A defense verdict that disintegrated over allegations of misconduct was reinstated when Florida's Fourth District Court of Appeal found a string of incidents were either not preserved for appeal, or not improper or prejudicial enough to warrant a new trial.

The personal injury case demonstrated the importance of thinking ahead during a trial by making the necessary objections for appeal.

Plaintiff Alicia Medina sued in 2015 for underinsured motorist benefits after another driver hit her car from behind at a red light.

But jurors sided with defendant State Farm Mutual Automobile Insurance Co., finding the 54-year-old plaintiff's lower-back injuries didn't stem from the low-impact crash.

Medina then pointed to four incidents of alleged misconduct, claiming State Farm's attorneys shouldn't have asked if she had hired a lawyer before seeking medical help, and "improperly interjected its wealth into the case" during closing arguments. She also alleged the defense's medical expert made improper comments about the plaintiff's expert.

Broward Circuit Judge Carlos A. Rodriguez had ordered a new trial over the allegations. But that was the wrong move, according to the appellate panel.

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'Surprise comment'

During cross examination of State Farm's medical expert, plaintiffs counsel asked, "I'm sure there's literally millions of reasons why you have that opinion, maybe subconsciously, right?"

The defense expert replied, "I don't know if that's a question, but I'm not plaintiffs attorney. I don't give my opinions based on money," according to the opinion, which said that followed a line of questioning about how much money the expert had made testifying over the years and came after he admitted to making millions.

Finding the "surprise comment" was the inadvertent result of "extensive witness badgering," the appellate panel sided with State Farm, which acknowledged the comments "weren't appropriate" but argued they weren't prejudicial enough for a retrial.

"Here, the comment was said only once, was not repeated again during the remainder of the trial, and it cannot be said that plaintiff was denied a fair trial based on this isolated comment," the opinion said.

The defense expert also allegedly suggested the opposing expert's report was wrong — in violation of an order prohibiting that. Medina's lawyers objected, but the record wasn't clear, according to the opinion. While the judge and plaintiffs counsel heard the words, "that's clearly wrong," transcripts reflect the expert saying, "[y]eah, that's clearly — so, when you do the."

Though the comment was improper, the Fourth DCA found the issue wasn't preserved because the plaintiff didn't move for a mistrial at the time.

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'We have got the big name'

Statements from State Farm's lawyer during closing arguments also raised issues, as they said, "Let's hope that we can get a jury of six people to say, hey, we have got the big guy over there, State Farm. We have got the big name and big lights, every TV commercial. We have got State Farm. And maybe, if we get six people to remember that it's State Farm on the other side, maybe they'll say, you know, something, let's give her money. Let's ignore everything the defendant said because we have got State Farm over there."

But the plaintiff didn't object, and the appellate panel found the comment wasn't used in the prejudicial way it normally is — to make jurors feel sorry for a less wealthy plaintiff.

"Here, aside from the fact that State Farm did not directly reference its wealth in closing, the prejudice that normally accompanies references to a party's wealth is not present as State Farm clearly did not seek to have the jury sympathize with the less wealthy plaintiff," the opinion said. "Rather, State Farm generally referenced its status as 'the big guy' in an attempt to demonstrate that Plaintiff failed to meet her burden"

And when defense lawyers asked Medina whether she'd hired a lawyer before getting medical help, they were referencing a questionnaire she completed at the chiropractor's office, when she answered "yes," according to the opinion.

Jurors saw that questionnaire after the defense claimed it was submitted into evidence and the plaintiff admitted to accidentally introducing it. The appellate panel noted it wasn't actually submitted into evidence, but it was too late to backtrack.

"Generally, whether a plaintiff retains an attorney is improper and irrelevant," the opinion said. "However, here, plaintiff invited the error by introducing the questionnaire without redacting the question at issue."

Rand Ackerman of Green, Ackerman & Matzner in Boca Raton and Elizabeth K. Russo of Russo Appellate Firm in Miami represented State Farm at trial, according to online case files. They, along with appellate attorney Paulo R. Lima, declined to comment.

Medina's lawyers Andrew H. Harris and Nichole J. Segal of Burlington & Rockenbach in West Palm Beach, and Yeemee Chan of Steinger, Greene & Feiner in Fort Lauderdale did not respond to a request for comment by deadline.

Fourth DCA Judge Dorian Damoorgian wrote the ruling, backed by Chief Judge Spencer Levine and Judge Jeffrey Kuntz.

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