During the underlying trial of the case, defense counsel disclosed to the jury how little the defendant earned during opening statements. While jury was considering motion for mistrial made by the Plaintiff, bailiff reported a juror was crying. Jury awarded the plaintiff $70,173.00 in a BI suit against Torres and Plaintiff appealed on claim that jury was swayed by the inability of the Defendant to pay.
In this accident, liability was conceded. Torres struck Samuels in the rear while driving a semi tractor trailer. The impact forced the plaintiff’s vehicle and trailer into a guardrail, damaging the vehicle, destroying the trailer contents and injuring the plaintiff.
During the initial trial, the defense attorney made a statement that there was no insurance and that the defendant was ultimately responsible for any judgment rendered by the jury. In response to this statement, the judge granted a mistrial.
A second jury was selected and opening statements proceeded. During the trial, the defense attorney stated again that the defendant was an owner-operator and in a good week only netted around $600.00. Plaintiff’s counsel immediately objected and the attorneys proceeded to side bar. Plaintiff’s counselor requested a curative instruction, the objection was sustained and a curative instruction was denied. At that time, the bailiff also told the judge that a juror was crying and upset. The judge then questioned the juror who stated that she “wasn’t use to this process and I’m just sitting here listening to their stories and some of it is so sad”.
The court considered the Motion for Mistrial and expressed concern about the ramifications of a second mistrial. The judge then took the Motion for mistrial under advisement.
During trial, Plaintiff presented evidence that the plaintiff had a permanent injury to her cervical spine and carpal tunnel syndrome. Plaintiff’s experts testified that the injuries required surgery. The plaintiff had carpal tunnel surgery which improved her symptoms, but did not completely resolve them. There was testimony that the plaintiff needed future cervical spine surgery costing approximately $60,000.00 to $80,000.00. Testimony from an economist was that the plaintiff’s total economic damages for future medicals and lost wages would be somewhere between $638,000.00 and $649,000.00. In closing, the plaintiff’s attorney asked for damages well in excess of $1 million.
The defense in the case was that the plaintiff’s injuries were the result of degenerative diseases that pre-existed the motor vehicle accident. The defense attorney suggested that the jury award only past medicals, past lost wages and pain and suffering of $5,000.00 and $1.00 a year for the resulting life expectancy of the plaintiff. This would total approximately $78,000.00.
The jury apparently followed the defendant’s recommendations and a verdict was entered in the amount of $70,873. After the collateral source setoffs, a judgment was entered in the amount of $60,873. The judge again denied the motion for mistrial.
On appeal, the 5th DCA said that when the plaintiff presented evidence of significant injuries. The court felt that because the jury awarded the plaintiff for future medical expenses of only $1,000.00 a year, the only explanation was the result of the prejudicial statement about Torres’ meager income.
The case was remanded for damages only.
