Bulkmatic Transport Company, et al. v. Darryl C. Taylor

Appellants, Bulkmatic Transport Company ("Bulkmatic") and Stephen Farnham, appeal the trial court's order granting appellee, Darryl C. Taylor, a new trial.
On appeal, appellants contend that the trial court erred in granting appellee a new trial
because the four grounds relied upon by the trial court, both individually and in
combination with one another, did not warrant such a result. We agree and, therefore,
reverse the trial court's new trial order and remand with directions to reinstate the
jury's verdict.

As a result of an accident that occurred on Old Kings Road in Duval County
between appellee and Farnham, an employee of Bulkmatic and the driver of
Bulkmatic's tractor-trailer, appellee brought suit against appellants. The accident
occurred before the tractor-trailer reached the two weight-restricted bridges on Old
Kings Road, which has a thirty-five-mile-an-hour speed limit. In Count I of his
complaint, appellee asserted that Bulkmatic was vicariously liable for Farnham's
negligent operation of the tractor-trailer. In Count II, appellee asserted that Bulkmatic
was liable for the negligent hiring, training, and supervision of Farnham. In Count III,
appellee asserted that Farnham was negligent in his operation of the tractor-trailer.

Prior to trial, appellee filed a motion in limine in which he sought an order
prohibiting appellants from making "[a]ny challenge to opposing counsel to tell the jury
why certain witnesses did not testify, or any reference to what uncalled witnesses
would have testified to if called," which the trial court granted. Appellee also filed a 3
Motion for Entry of Default Judgment or Other Appropriate Sanctions for Spoliation
of Evidence in which appellee alleged that, while he had repeatedly requested "any on
board computer data" from the tractor-trailer, appellants had failed to produce any
such evidence. Specifically, appellee sought any data from the tractor-trailer's
electronic control module, which is otherwise known as the "black box." During the
hearing on the latter motion, appellee's counsel stated, "At this juncture, we will
concede that the [appellee] can probably go forward with a prima facie case so that
. . . the willful destruction of this evidence will not in and of itself – I'm not going to
argue that you should strike the pleading of the [appellants] at this juncture."
Appellee's counsel contended that "a rebuttable presumption of negligence shifting the
burden to the [appellants] should be held and a jury instruction should be read to the
jury," that appellants' comparative negligence defense should be stricken, and that
appellants' accident reconstructionist, Stephen Chewning, should be stricken from
appellants' witness list. Following both counsels' arguments, the trial court found that
Chewning's failure to preserve the black box data exhibited willfulness and bad faith
that prejudiced appellee. Because the trial court determined that striking Chewning
would be inappropriate under the circumstances and would be "overkill," the court
concluded that the appropriate sanction would be to strike appellants' comparative
negligence defense. The trial court ruled that it would allow appellee to raise the issue
of the black box during the trial and the fact that any data contained therein was not
preserved.

Prior to voir dire, appellee's counsel explained to the trial court that Farnham
had a multi-year history, beginning in 1995, of not paying attention to Bulkmatic's
policies and procedures and that, two weeks prior to the accident at issue, Marty
Gribben, Farnham's supervisor, warned Farnham about driving on Old Kings Road
with a heavy load. Appellee's counsel also informed the trial court that Gribben had
testified in his deposition that Farnham always took shortcuts and that he had a history
of driving fast around the terminal. While the trial court initially ruled that it would
generally allow this type of testimony, the trial court subsequently ruled that it was only
going to allow the one warning given to Farnham by Gribben two weeks prior to the accident. According to the trial court, it believed that its earlier ruling was overbroad.

During voir dire, appellee's counsel informed the prospective jurors that they
were going to be instructed that when a professional driver in the employment of his
or her company causes harm, the driver's employer would be responsible for that
harm. In response, prospective juror Yawn stated that, while he thought that a
company is responsible for its employees, he did not know if that is 100%
responsibility; it depended upon the situation as to who it was and how much responsibility it was. Prospective juror Vanskoi stated that she did not think that it was
fair for a company to be held 100% accountable for the actions of its employees and
that she would be uncomfortable applying such a rule. Appellee's counsel then asked
the venire whether anyone thought that there had to be some limit on human damages
even if he or she was convinced that someone had sustained total damages of two
million dollars. Prospective juror Banana stated that it would bother her because of
an increase in her insurance rates. Vanskoi stated that her concern was "whether it's
more subjective than objective damages." When questioned by appellee's counsel as
to whether anyone else had a concern with the subjective versus the objective, prospective juror Riggins replied, "I'd have to go along with that."

In response to appellee's counsel's question as to whether they could apply an
analytical framework without limitation to fix what can be fixed and balance what
cannot be fixed even if it results in a very large number, Vanskoi stated that she could
not do so. Riggins responded, "That's tough for me because I don't know the facts
of the case. I don't know what you're going to be telling us. And it would have to
be a pretty convincing argument." When specifically asked by appellee's counsel if
she would have a problem with rendering a verdict in the amount of one dollar in favor
of appellee if she found that he had sustained that amount in damages, Riggins replied,
"No, I would not." When asked if she would have a problem with rendering a verdict in the amount of two million dollars if she believed the evidence established two million
dollars or more in damages, Riggins responded, "Perhaps." Appellee's counsel then
stated, "So we don't actually start out completely on an even playing field, at least in
that respect?" Riggins replied, "There are a whole bunch of variables that play typically
in one way or another; it's just difficult for me to sit here and tell you that I would have
no problem doing that because I don't know that." Prospective juror McDonald also
stated that he would have a problem with being responsible for saying something of
that magnitude and that he had a problem with holding an employer responsible for the
acts of its employees. When appellants' counsel subsequently asked the venire if everyone would be willing to give an award, be it one hundred thousand dollars or
three million dollars, if the evidence justified it, the prospective jurors nodded
affirmatively. When asked if anyone would be hesitant in giving appellee what he
deserved, no prospective juror responded.

Thereafter, appellee's counsel made his challenges for cause. The trial court
granted counsel's first challenge for cause as to a doctor who had stated that she had
difficulty with the greater weight of the evidence rationale. Counsel successfully
challenged McDonald for cause on the ground that he had a problem with large
damage awards and with holding an employer responsible for the acts of its
employees. Counsel also successfully challenged Banana for cause based upon her statement about her insurance rates. As to Vanskoi, counsel successfully challenged
her for cause as she had averred that she had a problem holding an employer liable for
its employees' acts and with awarding a large verdict.

With regard to appellee's challenge as to Riggins for cause, counsel contended
that, when asked whether the two sides would be starting out on an even playing field,
Riggins candidly said no. The court responded that it did not have Riggins saying that
in its notes and that, short of that, it thought that she had said that it would be a tough
job but that she could do it. After setting forth that the court reporter would attempt
to find Riggins' statement and after a brief recess, the trial court denied the challenge
as to Riggins for cause. The court also denied two challenges for cause as to Yawn
and prospective juror White.

When asked if he wished to exercise any peremptory challenges, appellee's
counsel renewed his challenge as to Riggins for cause, which the court again denied.
Counsel then utilized one of his peremptory challenges on Riggins, while once again
renewing his challenge for cause. According to counsel, he needed to state for record
purposes whom he would have used his peremptory challenges on had he received his
challenges for cause. Counsel continued that he would have utilized one challenge to
remove Yawn and another to remove prospective juror Solano, whose husband had
recently passed away and whose son had once driven trucks as his occupation.

During the trial, appellee called two eyewitnesses who testified that Farnham's
tractor-trailer crossed the center line and collided with appellee's vehicle. One of these
witnesses, Timothy Smith, a UPS driver, testified that he was driving at approximately
forty miles per hour behind the tractor-trailer, which had to be traveling at fifty-five or
sixty miles per hour. Appellee then played the videotaped deposition of Gribben,
wherein Gribben testified that Farnham had been warned or counseled two weeks prior
to the accident at issue about using Old Kings Road as a shortcut. Gribben further
testified that he had sent Farnham a message that if he got caught going over weightrestricted
bridges with a load that was too heavy, he would probably be paying a large fine and be looking for another job.

Appellants subsequently played a portion of Gribben's deposition. When asked
if he had said that Farnham was regarded as "something of an icon," Gribben replied,
"That's correct." Gribben further testified that "[e]veryone had a high regard for him,
yes." Shortly thereafter, appellee's counsel asked to approach the bench, contending
that the trial court had previously ruled that any reputation evidence about Farnham
would be inadmissible. According to counsel, appellants had placed Farnham's
reputation at issue by playing this portion of Gribben's deposition. Appellants'
counsel responded that he had shown appellee's counsel the portions he planned to
play at trial and that appellee's counsel could have objected at that point. After appellee's counsel explained that appellants' counsel had given "it to [him] before
lunch," and that he had gone through the testimony as quickly as possible, the trial
court set forth that it would instruct the jury to disregard any testimony about
Farnham's reputation but that it would not allow the "other stuff" to be introduced.
In response to appellee's counsel's statement that an instruction would reinforce what
the jurors had already heard, the trial court asked appellee's counsel if he wanted the
court to do nothing or to instruct the jury, to which counsel replied, "Why don't we
just leave it alone."

John Murdoch, appellee's consulting engineer specializing in accident
reconstruction and forensic engineering, next testified. When asked if he had made
any determinations regarding the speed of Farnham's tractor-trailer using engineering
principles, Murdoch testified that he calculated the speed at 41.6 miles per hour,
which, in his opinion, was a minimum speed based solely upon the length of the skid
mark that was present on Old Kings Road. According to Murdoch, the tractor-trailer
could have easily reached a speed of fifty miles per hour or more. Murdoch further
testified that he believed that the tractor-trailer crossed the center line into appellee's
lane of traffic at the point of initial contact.

On cross-examination, Murdoch testified that the major issue in the case was
in what lane the impact occurred. When questioned as to whether his speed calculation was based upon his accident reconstruction analysis, Murdoch responded
affirmatively. According to Murdoch, he made his evaluation regarding the skid mark
from what Farnham had said about his braking prior to the accident. When questioned
as to whether there was an accident reconstruction calculation to compute how fast
and how hard the tractor-trailer could turn for given speeds, Murdoch responded
affirmatively but stated that he had not done those computations. When questioned
if he knew how long it would take the tractor-trailer to make a certain maneuver at 41.6
miles per hour, Murdoch replied that he did not know because he had not calculated
it in this case. The rest of Murdoch's cross-examination testimony consisted of his opinions regarding the effect of tire and gouge marks on the determination of the
impact of the two vehicles, the location of the debris from the accident, the
maneuverability of the tractor-trailer, and his animated accident reconstruction.

Appellee subsequently called Steven Rickard, a consultant and instructor in
commercial motor vehicle accident investigation and reconstruction, for the purpose
of explaining the alleged significance of the black box data to the jury. According to
Rickard, the black box provides a printout of the speed of a vehicle when the driver
brakes or decelerates at a particular rate of speed in a second; on the box at issue, the
deceleration setting was eight miles per hour per second, which would constitute a
hard-braking event. According to Rickard, the black box will only store two hardbraking events at a time. When asked if the circumstances surrounding the accident
at issue would have qualified as a critical or hard-braking event that would have been
recorded, Rickard responded affirmatively. Rickard further testified that the critical
event data for the accident at issue was not present when the box was downloaded due
to the length of time between the accident and the downloading.

On cross-examination, Rickard testified that he had neither been to the accident
scene nor reconstructed the accident. Rickard further testified that the collision itself
would not have caused the black box to activate. When questioned as to whether a
vehicle traveling at forty-one miles per hour that took 190 feet to stop would result in
a hard-braking incident, Murdoch testified that "[i]t may not be. It may be. There's
too many variables."

After the close of appellee's case, the trial court directed a verdict as to Count
II of appellee's complaint in favor of appellants. Farnham subsequently testified that,
as a result of appellee crossing the center line on the day in question, he pulled his foot
off of the accelerator, started to the shoulder of the road, and decided just to "cover
the brake" for fear of losing control of his vehicle. Farnham further testified that he
had been warned about using Old Kings Road when his tractor-trailer was too heavy.
According to Farnham, he was making it up to thirty or thirty-five miles per hour when
he noticed appellee's van straddling the center line.

Following Farnham's testimony, the trial court set forth that it had looked over
appellee's requested jury instructions and was denying such. According to the trial
court, the request listed appellee's special requested jury instruction regarding the
presumption of negligence for the failure to preserve the black box data. In denying
the request, the trial court stated, "I think it goes too far in this case to do that under
the circumstances."Stephen Chewning, appellants' accident reconstructionist, subsequently testified
that he flew to Florida two weeks after the accident with equipment capable of
downloading black box data. However, because he viewed rolling tire marks at the
scene of the accident, which were inconsistent with hard braking, he decided not to
download the tractor-trailer's black box data. According to Chewning, if the tractortrailer's
brakes had been applied hard enough to trigger the black box, there would
have been furrows in the grass. Chewning testified that he calculated the speed of the
tractor-trailer at approximately thirty-five miles per hour. Chewning further testified
that, based upon his accident reconstruction, it was absolutely impossible that the tractor-trailer was in appellee's lane at initial contact and then at the point of maximum
engagement.

During closing argument, appellants' counsel stated:

Mr. Butler [appellee's counsel] brought up what is called a 2.2 instruction, credibility. You look at the witnesses and you can evaluate
them and – and you can, and you should do that. There were a lot of
witnesses that didn't testify: Dr. Salam, the psychiatrist; Allen Long; the
fiancé, Deborah Davis, who was there that day; Tina Shephard, Mr.
Taylor's fiancé, and most importantly the plaintiff himself, also.

This is the jury instruction, and the Judge is going to read it, and
just – it just says that in determining the believability you can look at
demeanor, frankness, intelligence, the interest they have in the outcome,
the ability to know the facts and remember the facts, and the . . .
reasonableness of the testimony, in the light of all the evidence in the
case, . . . . And – and we didn't – we didn't have the opportunity to do
that with these witnesses, and more importantly, Mr. Taylor. But – but
we did have an opportunity to look at the others. And I ask you to apply
these criteria to all of them, including Mr. Farnham.

Appellee's counsel made no contemporaneous objection to this portion of opposing
counsel's closing argument. Thereafter, the jury found no negligence on appellants'
part.

Following the verdict, appellee moved for a new trial, which the trial court
granted. In the trial court's Order Granting Plaintiff's Amended Motion for New Trial,
the court set forth that the case was a close one that could have resulted in a verdict
for either side. According to the court, the ultimate question for the jury's
determination was whether the tractor-trailer crossed into appellee's lane of travel. As
its first ground for granting a new trial, the court set forth that it previously erred in
failing to excuse venire woman Riggins for cause after she gave an indication that she
could not be fair to both sides and stated that she could not award two million dollars even if the evidence justified it. Within this finding, the court also set forth that, while
appellee did not overtly request an additional peremptory challenge, appellee had stated
those peremptories he would have used had he been granted the challenge for cause
on Riggins. As its second ground, the court set forth that it previously erred in failing
to allow appellee to offer testimony regarding Farnham's driving history with
Bulkmatic and that appellants had violated the court's ruling on a motion in limine by
introducing evidence that Farnham was a "highly regarded longtime employee who was
an icon of the company." According to the court, appellee's evidence would have
shown that Farnham continually took shortcuts and repeatedly violated Bulkmatic's company policy. As its third ground, the court set forth that after it found that
Chewning, appellants' expert reconstructionist, exhibited willful and wanton behavior
in failing to preserve critical black box data, it should have, at a minimum, given
appellee's requested jury instruction concerning a presumption of negligence and,
perhaps, not have allowed Chewning to testify. According to the court, the
significance of the speed and braking issues did not become clear until appellants
impeached appellee's expert reconstructionist regarding his guesswork about speed
and braking. The court further set forth that, had the black box data not been
destroyed, appellee's expert would not have had to guess about the speed and braking. As its fourth and final ground, the court set forth that appellants violated the court's order regarding item number nine of appellee's motion in limine by
commenting on the failure of certain witnesses to testify during closing argument. The
court concluded that "[t]he above referenced errors, both individually and in
combination, were substantially prejudicial to [appellee], who did not receive a fair trial
as a result." This appeal followed.

Generally, the granting of a new trial is within the sound discretion of the trial
court, which is reversible only upon a showing of an abuse of discretion. Am.
Employers' Ins. Co. v. Taylor, 476 So. 2d 281, 283 (Fla. 1st DCA 1985). However,
if the trial court's ruling is grounded on a question of law, the appellate court is on the
same footing as the trial court in determining the correct law to be applied, and the
broad discretion rule loses much of its force and effect. Id. In other words, "[w]hen
the issue under review is essentially legal, the ruling is not entitled to the broad
deference generally afforded a trial court's decision to override a jury's verdict in
cases where the court found the verdict contrary to the manifest weight of the evidence." Heckford v. Fla. Dep't of Corr., 699 So. 2d 247, 249 (Fla. 1st DCA 1997)
(citations omitted). "While it is difficult to categorize any trial error as purely legal, ‘a
trial judge's discretion progressively diminishes as an issue becomes increasingly
legal.'" Id. (quoting Tri-Pak Mach., Inc. v. Hartshorn, 644 So. 2d 118, 119-20 n.1
(Fla. 2d DCA 1994)).

Because the trial court in the instant case did not base its new trial order on a
finding that the verdict was contrary to the manifest weight of the evidence, but instead
based such upon four grounds that are essentially legal in nature, the trial court is not
entitled to the broad deference generally afforded to trial courts when they rule on a
motion for new trial. See Hartshorn, 644 So. 2d at 120-121 (applying a less deferential
standard of review in evaluating the trial court's order granting the appellees a new trial
based upon the trial court's "four legal rulings," which included two rulings that the
court should have given two special jury instructions, a ruling that the court erred by
permitting cross-examination of a witness, and a ruling that it erred in prohibiting certain cross-examination of the appellant's medical expert); see also Heckford, 699
So. 2d at 250-51 (applying a less deferential standard of review in evaluating the trial
court's order in which the court granted the appellee a new trial based upon its finding
that the admission of a certain doctor's report constituted error); Sebring Assocs.,
LTD v. Aumann, 673 So. 2d 875, 876 (Fla. 2d DCA 1996) (holding that the trial
court's discretion in granting a new trial becomes limited when the decision turns on
a question of law where the trial court granted a new trial because it found that the jury
had been improperly impaneled); Taylor, 476 So. 2d at 283 (applying a less deferential
standard of review in evaluating the trial court's order in which the court granted the appellee a new trial based upon its determination that the jury had been misinstructed).

As its first ground for granting appellee a new trial, the trial court found that it
previously erred in not granting appellee's challenge as to Riggins for cause.
Appellants contend that a new trial was not warranted based upon this ground because
appellee failed to preserve the issue by not requesting additional peremptory
challenges. In Van Poyck v. Singletary, 715 So. 2d 930, 931 (Fla. 1998), the supreme
court concluded that it is reversible error when a challenge for cause is improperly
denied, and the defendant then exhausts his peremptory challenges on venire persons
who should have been dismissed for cause and a request for additional peremptory
challenges is denied. See also Taylor v. State, 796 So. 2d 570, 572 (Fla. 2d DCA 2001) (holding that a defendant who challenges his conviction based upon a claim that
he was improperly forced to exhaust his peremptory challenges must identify a
specific venire person whom he would have removed peremptorily and that the
defendant must have requested an additional peremptory strike to remove the
objectionable venire person); Hutchinson Island Club Condo. Ass'n v. Degraw, 774
So. 2d 37, 37 (Fla. 4th DCA 2000) (reversing an order granting the appellee a new trial
and concluding that the denial of challenges for cause argument also failed for lack of
preservation as the appellee failed to request additional peremptory challenges); Aumann, 673 So. 2d at 876 (concluding that the trial court erred as a matter of law in
granting the appellees a new trial as the appellees failed to request additional peremptory challenges once they exhausted their initial compliment of strikes and as
they failed to identify the objectionable juror whom they would have stricken
peremptorily); Dobek v. Ans, 560 So. 2d 328, 329 (Fla. 4th DCA 1990) (noting that
in Hill v. State, 477 So. 2d 553 (Fla. 1985), the supreme court, albeit by dictum,
indicated that an appellant must show an exhaustion of all peremptory challenges and
a denial of a request for additional challenges and affirming the final judgment because
the appellant failed to make a specific request for additional peremptory challenges);
Jenkins v. Humana of Fla., Inc., 553 So. 2d 201, 202 (Fla. 5th DCA 1989) (holding
that its previous decision in Auriemme v. State, 501 So. 2d 41 (Fla. 5th DCA 1986), wherein the court held that a party need not seek additional challenges in order to
preserve the error resulting from a trial court's improper refusal to grant a challenge
for cause, was in direct conflict with Hill and thereby receding from Auriemme to the
extent that it was in conflict with its decision).

In contrast to the foregoing decisions, in City of Live Oak v. Townsend, 567
So. 2d 926, 927 (Fla. 1st DCA 1990), which appellee relies upon, this Court noted
that, because of the responses to the questions asked during voir dire, the appellant's
counsel challenged eight prospective jurors for cause in the eminent domain
proceeding. Because the trial court denied all eight challenges, counsel used his
remaining peremptory challenges to excuse four of those eight prospective jurors. Id. at 927. Before the jury was sworn, counsel unsuccessfully renewed his request that
the four jurors, whom he had peremptorily challenged, be excused for cause. Id.
According to this Court, a review of the record reflected that each of the eight
prospective jurors who were challenged for cause should have been excused.1 Id. at
928. While noting that counsel did not specifically request additional peremptory
challenges "in so many words," this Court determined that, had his renewed challenges
for cause towards the four prospective jurors been granted, his peremptory challenges
would have been restored and available to challenge the other four venire persons who
were seated as jurors. Id. Thus, this Court viewed counsel's "unavailing renewed cause challenges as the functional equivalent of a request for additional peremptory
challenges which was denied, thereby entitling him to raise the matter on appeal," and
concluded that to hold otherwise would be to embrace form and eschew substance.
Id.

Although appellee argues that Townsend is controlling as to this issue, we
disagree and find Townsend factually distinguishable from the facts of the instant case.
While this case is similar to Townsend, in that appellee's counsel also failed to request additional peremptories and repeatedly renewed his challenges for cause, this case is
distinguishable from Townsend, in that, here, the trial court granted four of appellee's
counsel's challenges for cause. Furthermore, the trial court properly denied the
challenges for cause as to Riggins,2 as to Yawn, and as to White, an insurance
adjuster. Neither Riggins' statement that it would have to be a convincing case for her
to award a large verdict nor Yawn's statement that, while he did not know if a
company would be 100% liable for its employees, he thought companies are
responsible for their employees and that it would depend upon the situation warranted
a striking for cause. Moreover, although counsel set forth that he would have used one of his peremptories to strike Solano, whose husband had recently passed away
and whose son had driven a truck in the past, such factors would not have warranted
a striking for cause either. Thus, there is no indication in this case, as there was in
Townsend, that there was considerably more than a reasonable doubt as to the
impartiality of the challenged prospective jurors and that such doubt was harmful and
manifest to appellee. Therefore, because Townsend is distinguishable from the facts
presently before us and because appellee's counsel failed to request additional
peremptory challenges, which would have given the trial court the opportunity to either grant or deny the request, we hold that this issue was not preserved. As such, the trial
court erred in determining that appellee was entitled to a new trial on this ground. See
Degraw, 774 So. 2d at 37; Aumann, 673 So. 2d at 877.

As its second ground in support of its new trial order, the trial court found that
it previously erred in failing to allow appellee to offer testimony regarding Farnham's
driving history with Bulkmatic and that appellee's evidence would have shown that
Farnham continually took shortcuts and repeatedly violated Bulkmatic's company
policy. According to the trial court, appellants violated an order in limine by
introducing evidence that Farnham was an icon at Bulkmatic. On appeal, appellants
contend that appellee failed to preserve this issue for purposes of a new trial and that,
even if the issue was preserved, the irrelevant evidence was introduced during the
course of the trial, obviating the need for a new trial.

In support of their argument that appellee failed to preserve this issue, appellants
rely upon the Third District's decision in Allstate Insurance Co. v. Hinchey, 701 So.
2d 1263, 1264 (Fla. 3d DCA 1997), wherein the Third District reversed the trial court's
order granting a new trial because the violation of the motion in limine had been invited
and because ample evidence existed to support the jury verdict. There, prior to the
trial, the parties agreed to a motion in limine excluding the hospital records that
indicated that the appellee consumed four alcoholic drinks on the night of the accident.

Id. at 1264-65. When the appellee's counsel cross-examined the appellant's witness
and asked if there was anywhere in the records that suggested that the appellee was
intoxicated, the witness mentioned the one reference regarding the four drinks. Id. at
1265. Following the jury verdict in favor of the appellant, the trial court granted the
appellee a new trial based upon the appellant's witness's testimony. Id. In reversing,
the Third District concluded that, not only did the appellee invite the testimony and fail
to object to its admission, she also rejected the court's offer to provide a curative
instruction. Id. In other words, counsel was gambling that the jury would return a favorable verdict. Id.

In contrast to Hinchey, here, appellee's counsel did not invite Gribben's
testimony that Farnham was considered an icon. It was appellants' counsel that
played that portion of Gribben's deposition testimony. Moreover, while appellee's
counsel did not immediately object to this testimony, counsel did request a sidebar
shortly thereafter during which he averred that the testimony placed Farnham's
reputation at issue. Cf. Hargrove v. CSX Transp., Inc., 631 So. 2d 345, 346 (Fla. 2d
DCA 1994) (holding that the appellee's objection was untimely because it was not
made until after the jury delivered an adverse verdict). Thus, because the instant case
is distinguishable from Hinchey, appellee properly preserved this issue.

Turning to the merits of this second issue, pursuant to section 90.401, Florida Statutes (2000), relevant evidence "is evidence tending to prove or disprove a material
fact." "All relevant evidence is admissible, except as provided by law." § 90.402, Fla.
Stat. (2000). Section 90.404(1), Florida Statutes (2000), provides that "[e]vidence of
a person's character or a trait of character is inadmissible to prove action in
conformity with it on a particular occasion," except when addressing the character of
the accused, the character of the victim, or the character of a witness. See also Smith
v. Hooligan's Pub & Oyster Bar, Ltd., 753 So. 2d 596, 599 (Fla. 3d DCA 2000).
When evidence of a person's character or a trait of the person's character is admissible, proof of such may be made by testimony regarding the person's
reputation. § 90.405(1), Fla. Stat. (2000). Specific instances of conduct may serve
as proof of a person's character or a trait of that character when the character or the
trait is an essential element of a charge, claim, or defense. § 90.405(2), Fla. Stat.
(2000).

As set forth in section 90.404(1), evidence of Farnham's character or a trait of
his character, such as violating company policies by continually taking shortcuts, is
inadmissible to prove action in conformity with his character on a particular occasion,
such as the day of the accident. For example, testimony that a person exceeded the
speed limit on a limited number of occasions is not admissible to prove that the person
exceeded the speed limit at the time in question. See Charles W. Ehrhardt, Florida Evidence § 404.3 (2002 ed.). However, character evidence in civil actions is
admissible when it is relevant and offered to prove an issue other than that the person
acted in conformity with his or her character. See id.

The trial court was initially correct when it ruled that only Gribben's warning
two weeks prior to the accident would be admissible, as evidence of Farnham's
driving history or record would be inadmissible for purposes of proving that he acted
in conformity with such on the day the accident occurred. Furthermore, even if the
trial court erred in not allowing appellee to introduce evidence to rebut Gribben's icon
testimony, a trial court's error in the acceptance or rejection of evidence does not
necessarily constitute harmful error. See Midtown Enters., Inc. v. Local Contractors,
Inc., 785 So. 2d 578, 580 (Fla. 3d DCA 2001). It is only "when a substantial right of
the party is adversely affected" that a trial court may grant a new trial on this basis. § 90.104(1), Fla. Stat. (2000); see also Parsons v. Motor Homes of Am., Inc., 465 So.
2d 1285, 1290 (Fla. 1st DCA 1985). When a trial court is asked to grant a new trial
on the basis of evidentiary errors, the court, in essence, sits as an appellate court and
can only reverse itself if the error was substantially prejudicial. Midtown Enters., Inc.,
785 So. 2d at 580.

In the instant case, the jury was informed several times throughout the trial that
Gribben had warned Farnham two weeks prior to the accident not to use Old Kings Road because of the weight restrictions on its bridges. Not only did Gribben testify
regarding this warning, Farnham also testified about this warning and that he used a
certain route that included Old Kings Road a great deal. With regard to appellee's
evidence that Farnham had a history of speeding around the terminal, the jury heard
evidence throughout the trial that Farnham was speeding immediately prior to the
accident. Timothy Smith, an eyewitness, testified that he estimated that Farnham was
traveling at a rate of fifty-five or sixty miles per hour on Old Kings Road, which has
a thirty-five-mile-an-hour speed limit. Murdoch calculated Farnham's speed at 41.6
miles per hour, which was a minimum speed, and testified that Farnham could have easily been traveling in excess of fifty miles per hour. Based upon this testimony, any
error that the trial court may have made in prohibiting appellee from introducing
reputation testimony to rebut Gribben's icon testimony did not substantially prejudice
appellee. As such, the trial court erred in reversing itself on this issue. See Midtown
Enters., Inc., 785 So. 2d at 580.

As its third ground in support of its new trial order, the trial court determined
that, after it found that Chewning exhibited willful and wanton behavior in failing to
preserve the black box data, it should have, at a minimum, given appellee's requested
jury instruction concerning a presumption of negligence and, perhaps, not allowed
Chewning to testify, notwithstanding its previous decision to only strike appellants' comparative negligence defense. According to the trial court, the significance of the
speed and braking issues did not become clear until appellants impeached Murdoch,
appellee's accident reconstructionist, regarding his guesswork about speed and
braking. Appellants aver that a new trial was not warranted on this ground because
appellee's ability to establish a prima facie case was in no way hindered by the lack of
the black box data.

In Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 599 (Fla.
1987), the supreme court held that, in order for a court to shift the burden of
producing evidence when a defendant causes the negligent loss or destruction of
records, a plaintiff must first establish to the satisfaction of the court that the absence
of the records hinders his or her ability to establish a prima facie case. See also
Jordan v. Masters, 821 So. 2d 342, 347 (Fla. 4th DCA 2002) (indicating that a Valcin
rebuttable presumption would have been proper had the appellant offered evidence to
support the existence of the videotape and had he established that the missing
videotape was essential to proving a prima facie case of sexual abuse); Anesthesiology Critical Care & Pain Mgmt. Consultants, P.A. v. Kretzer, 802 So. 2d 346, 349 (Fla.
4th DCA 2001) (holding that the Valcin doctrine is applied when, through the
defendant's negligence, essential records are missing or inadequate and such absence
or inadequacy hinders the plaintiff's ability to establish a prima facie case).

Here, when requesting potential sanctions, appellee's counsel stated, "At this
juncture, we will concede that the [appellee] can probably go forward with a prima
facie case . . . ." Furthermore, when appellants moved for a directed verdict as to all
three counts, appellee's counsel argued that there was "more than sufficient evidence
as to the actions of Mr. Farnham on the day of the accident, so that the jury should
consider whether or not his actions were negligent." The trial court then denied
appellants' motion as to counts one and three. Cf. Palm Beach Roamer, Inc. v.
McClure, 727 So. 2d 1005, 1007 (Fla. 5th DCA 1999) (holding that a directed verdict
is proper where the evidence and reasonable inferences therefrom, considered in a light most favorable to the nonmoving party, fail to establish a prima facie case of the claim
asserted). Although appellee asserts on appeal that the adverse jury verdict evidences
that his ability to prove liability was severely prejudiced, the adverse jury verdict
evidences that appellee failed to prove his case by a preponderance of the evidence,
not that he was unable to establish a prima face case.

Moreover, while the trial court found in its new trial order that the significance
of the speed and braking issues did not become clear until appellants impeached
Murdoch, the trial court denied appellee's request for a presumption of negligence jury
instruction after Murdoch testified, setting forth that "I think it goes too far in this case
to do that under the circumstances." Yet, interestingly, the trial court subsequently decided, after the jury returned a verdict in favor of appellants, that such a
presumption had, in fact, been warranted. The trial court's finding that Murdoch
would not have suffered through such a withering cross-examination had the black box
data not been destroyed is also erroneous as the issue of whether the black box
actually recorded anything on the day of the accident was not conclusively established
at trial.

In addition, Murdoch did not testify that the lack of the black box data
precluded him from rendering his opinion as to how the accident occurred or in
calculating the speed of Farnham's tractor-trailer. Murdoch unequivocally testified
that he calculated the speed of the tractor-trailer at 41.6 miles per hour based upon
engineering principles. Cf. Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088,
1092 (Fla. 4th DCA 2001) (holding that the appellant's ability to proceed against the
appellee for products liability was hampered as the appellant's expert stated that he
could not determine whether a defect was present in the soda bottle, nor could he
attribute any defect to mishandling without evaluating the bottle); Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629, 630-31 (Fla. 3d DCA 1995) (holding that the appellee's
motion for default, a drastic sanction, was properly granted as the appellee's expert
convinced the trial court that, in the absence of the crucial evidence, the appellee was
no longer able to proceed against the appellant). Therefore, because appellee's ability to establish a prima facie case was not hindered by the lack of the black box data, if
any such data existed, the trial court was correct in initially denying appellee's request
to give a presumption of negligence jury instruction. The trial court was also initially
correct in declining to strike Chewning from appellants' witness list as "the exclusion
of a witness' testimony is a drastic remedy which should be utilized only under the
most compelling circumstances." Vega v. CSCS Int'l, N.V., 795 So. 2d 164, 167
(Fla. 3d DCA 2001) (citations omitted). As such, the trial court's third ground in
support of its new trial order did not warrant a new trial.

As its fourth ground in support of its order granting appellee a new trial, the trial
court set forth that appellants violated the court's order in limine by commenting on
the failure of certain witnesses to testify during closing argument. Appellants' counsel
stated:

Mr. Butler [appellee's counsel] brought up what is called a 2.2
instruction, credibility. You look at the witnesses and you can evaluate
them and – and you can, and you should do that. There were a lot of
witnesses that didn't testify: Dr. Salam, the psychiatrist; Allen Long; the
fiancé, Deborah Davis, who was there that day; Tina Shephard, Mr.
Taylor's fiancé, and most importantly the plaintiff himself, also.

This is the jury instruction, and the Judge is going to read it, and
just – it just says that in determining the believability you can look at
demeanor, frankness, intelligence, the interest they have in the outcome,
the ability to know the facts and remember the facts, and the . . .
reasonableness of the testimony, in the light of all the evidence in the
case, . . . . And – and we didn't – we didn't have the opportunity to do that with these witnesses, and more importantly, Mr. Taylor. But – but
we did have an opportunity to look at the others. And I ask you to apply
these criteria to all of them, including Mr. Farnham.

Appellants contend that a new trial was not warranted based upon these comments
because appellee failed to preserve the issue by not contemporaneously objecting to
such and because the comments did not satisfy the four-part test as set forth in
Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000).

In Murphy, the supreme court addressed the issue of what a party must
demonstrate to receive a new trial based upon an unobjected-to closing argument. Id.
at 1028. According to the supreme court, a complaining party must first establish that
the argument was improper. Id. In determining whether an argument is improper, a
trial judge must be mindful that the purpose of closing argument is to help the jury
understand the issues in a case by "‘applying the evidence to the law applicable to the
case.'" Id. (quoting Hill, 515 So. 2d at 178). Once the complaining party establishes
that the argument was improper, it must then establish that the argument was harmful.
Id. at 1029. Harmfulness carries a requirement that "the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and
determination of the case by the jury." Id. "Passing remarks of little consequence in
the scope of a lengthy trial find little sympathy if no contemporaneous objection is
voiced." Id. at 1029-30. In other words, "the improper closing argument comments must be of such a nature that it reaches into the validity of the trial itself to the extent
that the verdict reached could not have been obtained but for such comments." Id.
at 1030. Once the argument is established to be improper and harmful, the
complaining party must then establish that the argument is incurable, i.e., that "even if
the trial court had sustained a timely objection to the improper argument and instructed
the jury to disregard the improper argument, such curative means could not have
eliminated the probability that the . . . argument resulted in an improper verdict." Id.
The final element of the four-part test is that the complaining party must establish that
the argument so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial. Id. If the trial court finds that all of these criteria
have been met, it must enter an order granting a new trial specifically identifying both
the improper arguments of counsel and the actions of the jury resulting from those
arguments. Id. at 1031.

On appeal, appellee concedes that the trial court did not find appellants'
counsel's closing argument to be incurable or to have so impaired the fairness of the
trial that the public's interest in our system of justice required a new trial, the third and
fourth elements of the Murphy test. Moreover, appellee does not attempt to establish
that the comments at issue satisfied these elements, which, under the facts of this case,
would be a futile exercise. Thus, because appellee's counsel failed to object to the comments at issue and because the third and fourth elements of the Murphy test have
not been satisfied, the trial court erred in granting appellee a new trial on this ground.

Accordingly, the trial court erred in granting appellee a new trial because the four
grounds in support of the trial court's order, both individually and in combination with
one another, did not warrant such a result. We, therefore, reverse the trial court's
order and remand with directions to reinstate the jury's verdict.

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Click the case caption above for the full text of the Court's opinion.