SUSAN PRIEST
v.
SUMMER L. VELISEK
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A trial court errs in granting a new trial based on cross-examination of an expert witness regarding his total annual income from all defendants when such inquiry is barred by a discovery rule rather than an evidentiary rule, and errs in granting a new trial based on the defendant's own unsolicited statement about insurance when counsel expressly waived any error.
[1] Florida Rule of Civil Procedure 1.280, which governs discovery, does not provide a basis for excluding cross-examination of an expert witness regarding his financial bias…
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Join FLexlaw to unlock all legal intelligenceIn a negligence action, the trial court granted the defendant's motion for a new trial based on two grounds: the plaintiff's cross-examination of the …
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
SUSAN PRIEST,
Appellant,
v. Case No. 5D17-2059
SUMMER L. VELISEK,
Appellee.
________________________________/
Opinion filed October 26, 2018
Appeal from the Circuit Court for Brevard County, George B. Turner, Judge.
Maureen Monaghan Matheson, of Satellite Beach, and Robert
M.
Moletteire, Melbourne, for Appellant.
Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Appellee. John C. Hamilton, Law Office of John
C. Hamilton of Tampa, P.A., San
Antonio, Amicus Curiae, for the Non- Party Expert, Michael J. Foley, M.D., in support of Appellee.
PER CURIAM.
Appellant, Susan Priest, appeals an order granting Appellee’s, Summer L. Velisek, motion for a new trial in the underlying negligence action. The trial court based the order
2 granting a new trial on a combination of two issues: Appellant’s cross-examination of Appellee’s expert witness about his financial bias (where the expert was asked if he previously testified to earning two million dollars annually from all defendants) and Appellee’s unsolicited and unexpected mentioning of “insurance” while she testified during Appellant’s case-in-chief. The court found it erred in allowing the crossexamination of Appellee’s expert and that Appellee’s mention of insurance was prejudicial. Appellant argues that neither ground supports the grant of a new trial. We agree. In granting a new trial, the trial court ruled that Florida Rule of Civil Procedure 1.280 prohibited Appellant’s counsel from questioning Appellee’s expert concerning his total annual income from all defendants, and that it should have applied this rule to bar any inquiry into the expert’s total annual income on cross-examination.1 However, rule 1.280 is a rule pertaining to discovery—not evidence. Therefore, we find that the trial court erroneously relied upon this procedural rule in granting a new trial in Appellee’s favor. Likewise, the trial court erred when it granted a new trial based upon Appellee’s own unexpected and unsolicited statement in front of the jury regarding her insurance. We find this argument lacks merit because at a minimum, any error was expressly waived by Appellee’s counsel.2
EVANDER and EISNAUGLE, JJ., and ROGERS, S.G., Associate Judge, concur.
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Citator
Authorities Cited
- Russ v. State, 95 So. 2d 594 (Fla. 1957)
- Grady Nelson v. State, 362 So. 2d 1017 (Fla. 3d DCA 1978)
- Meixelsperger v. State, 423 So. 2d 416 (Fla. 2d DCA 1982)