Florida is a popular destination for tourists who wish to go on a cruise. The last thing anyone wants to worry about while on vacation is getting into an accident while on the boat. However, accidents do happen on cruise ships.
Usually cruise ship attorneys are very experienced at defending personal injury actions. They know how to poke holes in a plaintiff’s case, maximize technical or procedural flaws in a plaintiff’s case and minimize their exposure in the lawsuit. Therefore, if you are hurt on a cruise ship because of a condition on the cruise ship that is not your fault it is important to retain an experienced personal injury attorney to prosecute this type of case. An attorney experienced at representing plaintiffs can try to make sure you receive any compensation to which you may be entitled.
Recently, an appellate court considered an argument that the Carnival Cruise Line’s defense attorney made improper comments at a personal injury trial. The case arose when a woman took a Carnival cruise in order to go to her nephew’s wedding. She slipped and fell on something oily on the ship’s floor by the buffet while the ship was docked in Tampa. She was taken to Tampa General Hospital and treated for contusions to her right hip, right knee and back strain.
Over the following weeks, the pain the woman felt on her right side began to stop. She then visited an orthopedic surgeon. The surgeon performed two procedures on her left knee. Between these procedures, she experienced a sharp pain in her left knee while gardening.
The woman sued the cruise ship. The doctor appeared as her witness, testifying that the slip and fall caused the problems with her left knee making it necessary for her to undergo surgery. The cruise ship, however, argued that her problems with her right hip and knee resolved within a few weeks and the left knee problem was an unrelated degenerative joint condition.
Because the plaintiff had no medical insurance, her providers treated her under letters of protection. The defense attorney made the letter of protection related to the orthopedic surgeon an issue at trial. He attacked the doctor’s credibility with the letter of protection. He also suggested that because the doctor was friends with plaintiff’s counsel, they had conspired to manufacture or “script” the doctor’s testimony.
Both of the parties mentioned the letter of protection in their closing statements–the plaintiff’s attorney refuted the idea that the letter of protection gave the orthopedic surgeon a financial interest in the outcome of the case. He also discussed that it was improper for the defense attorney to personally attack him and made the point that he had not made as many objections as he could have.
The jury found for the plaintiff in the amount of $3750 for past pain and suffering. It awarded $3750 for past medical expenses. The plaintiff moved for a new trial and it was granted on the basis that Carnival’s claims related to a supposed conspiracy between the doctor and plaintiff’s counsel had been inflammatory and misleading. Carnival appealed.
The Court of Appeals explained that there is a four-part test to be applied to determine whether a new trial is necessary when an attorney makes improper closing arguments but no objection is made in the moment. A motion for new trial requires that the moving party show the challenged argument was (1) improper, (2) harmful, (3) incurable, and (4) so damaging to the fairness of the trial that the public’s interest in justice demands a new trial.
The defense attorney’s insinuation of a doctor-lawyer conspiracy was clearly improper, satisfying prong 1. However, the appellate court found that the comment may not have been as harmful as the trial court believed it was. Although the plaintiff sought more than what was awarded, the jury had not found any comparative negligence on her part and could have awarded the sum because it believed there was some degenerative condition at work in her knee. The appellate court did not find prong 2 to be satisfied.
It also did not believe the argument was incurable. In this case, the plaintiff’s counsel himself admitted he made no requests for a curative instruction during the defense attorney’s closing argument and only made two objections through the course of the trial.
The trial court sustained the objections he did raise and would likely given a curative instruction if one had been requested. The appellate court did not consider the fourth prong because the plaintiff did not meet the second or third prong. The appellate court reversed the lower court’s granting of a new trial and let the final judgment stand.
If you or a loved one has been hurt because of another person’s negligence, call the experienced South Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
What is Florida’s Dangerous Instrumentality Doctrine? South Florida Personal Injury Lawyers Blog, May 24, 2013
Florida Appellate Court Applies Slip and Fall Law Retroactively, South Florida Personal Injury Lawyers Blog, May 31, 2013