McKinney v. Graham

313 So.3d 867

Cory MCKINNEY and McQueen Membership Group, LLC, Appellants/Cross-Appellees,

v.Micah GRAHAM, Appellee/Cross-Appellant.

Case No. 5D18-3265

District Court of Appeal of Florida, Fifth District.

Opinion filed February 12, 2021

Rehearing Denied March 18, 2021

Peter D. Webster, Carlton Fields, Tallahassee, and Paul L. Nettleton and Jeffrey A. Cohen, of Carlton Fields, Miami, for Appellants/Cross-Appellees.

Christopher V. Carlyle and John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellee/Cross-Appellant.

PER CURIAM.

Cory McKinney and McQueen Membership Group, LLC ("McQueen") (collectively, "Appellants") appeal the final judgment in favor of the plaintiff, Micah Graham.

Graham was stopped at a red light when he was rear-ended by McKinney. Thereafter, Graham instituted negligence actions against McKinney and McQueen, who was the entity that owned the vehicle. Because McKinney was intoxicated at the time of the accident, Graham sought punitive damages against him.

Before trial, Appellants stipulated that McKinney was liable for causing the accident and that McQueen was vicariously liable.¹ McKinney agreed that if the jury awarded compensatory damages to Graham, Graham would be entitled to punitive damages. Appellants then moved to bifurcate the trial and exclude evidence of McKinney's intoxication during the compensatory damages phase of the trial, at which the jury would determine whether the accident caused Graham's injuries and, if so, the extent of those injuries.

The trial court agreed to bifurcate the trial but declined to exclude evidence of intoxication in the compensatory phase. Graham seized upon that opportunity, addressing McKinney's intoxication in both his opening statement and closing argument, and presenting evidence on that issue. While eager to present such argument and evidence, Graham paradoxically informed the jury that such information was irrelevant to their determination of compensatory damages. In addition, the trial court instructed the jury that McKinney was impaired and provided his blood alcohol level, which was substantially higher than the legal limit.

During trial, Graham presented several medical experts, including Dr. Sean Mahan and Dr. Robert Masson. Appellants sought to cross-examine Dr. Mahan on his alleged personal friendship with Graham's counsel, but the trial court limited such inquiry to whether the two were personal friends and how long their relationship had existed.² Similarly, Appellants sought to read portions of Dr. Masson's deposition to the jury, where he refused to answer questions related to his relationship with Graham's counsel. The trial court's rationale for denying Appellants’ request was that their designations for the deposition were untimely, despite Graham having filed his initial designations the day before trial.

The jury found that McKinney's admitted negligence caused Graham's injuries and awarded $2,630,226.91 in compensatory damages. At Graham's request, and despite Appellants’ earlier concession, the trial court submitted the question of Graham's entitlement to punitive damages to the jury. That question was answered in the affirmative. The trial court then conducted the second phase of trial to determine the amount of punitive damages, after which the jury rendered a verdict awarding Graham $15,000.

On appeal, Appellants raise two issues. They allege error in the trial court's decision to allow the introduction of McKinney's intoxication despite the pre-trial concession as to both liability and punitive damages. Next, Appellants allege error in the trial court's limitation on their cross-examination of the two medical experts as to the extent of their relationship with Graham's counsel.

The Florida Supreme Court has determined that bifurcation is proper when both compensatory and punitive damages are at issue. W.R. Grace & Company-Conn. v. Waters, 638 So. 2d 502 (Fla. 1994). Grace was an asbestos case, and the primary issue involved the imposition of multiple punitive damage awards in the mass tort litigation context. 638 So. 2d at 504. Secondarily, the court developed a procedure to be used in such cases. Id. at 506. Under the described procedure, the jury, in the first phase, should hear evidence related to liability for actual damages, the amount of actual damages, and liability for punitive damages. Id. In the second phase, the same jury should hear evidence as to the amount of punitive damages. Id. The court reasoned that without the dual phases, defendants would be prejudiced because the plaintiff could present evidence of the defendant's net worth when liability for punitive damages had not yet been determined. Id. Grace neither contemplated nor addressed the circumstances presented in the instant case where the defense stipulates to both negligence and liability to punitive damages.

The issue of the introduction of evidence of intoxication despite its pretrial concession has been addressed in recent years by a number of courts. In Swanson v. Robles, 128 So. 3d 915 (Fla. 2d DCA 2013), the trial court allowed the plaintiff to introduce evidence of Swanson's drug use in the compensatory phase of the trial when liability for compensatory and punitive damages had been conceded. Similar to the instant case, the action arose out of an automobile accident. The Second District reversed, holding: "When a defendant admits liability in an automobile negligence case and the only remaining issue is the amount of compensatory damages, evidence regarding the defendant's sobriety should not be admitted into evidence." Swanson, 128 So. 3d at 917 (citations omitted). The Swanson court noted that "[t]here was no reason to admit evidence of his drug use in a bifurcated first phase other than to inflame the jury and increase the compensatory damages verdict." Id. at 918–19.

This issue was again addressed in GEICO General Insurance Co. v. Dixon, 209 So. 3d 77 (Fla. 3d DCA 2017). Before trial, GEICO and the uninsured motorist admitted liability, and the trial court ordered that the plaintiff was entitled to recover an award of punitive damages in an amount to be determined in the second phase of the proceedings. Dixon, 209 So. 3d at 79. As in the instant case, the trial court in Dixon informed the jury at the outset of the compensatory phase that the motorist had been driving under the influence at the time of the accident, and the plaintiff presented evidence of the motorist's intoxication. Id. at 79. The Third District ruled that "[i]n an automobile negligence case, when the defendant admits liability regarding the cause of the accident, evidence of the defendant's sobriety is irrelevant and prejudicial." Id. at 81 (citing Swanson, 128 So. 3d at 917–18 ; other citations omitted). As a result, it found that the trial court abused its discretion in allowing evidence of the motorist's intoxication and ordered a new trial on compensatory damages. Id.

The closest this Court has come to addressing this issue was in St. Paul Mercury Insurance Co. v. Coucher, 837 So. 2d 483 (Fla. 5th DCA 2002). Both St. Paul and the underinsured driver of the vehicle admitted that the driver caused the car accident while intoxicated, and the driver conceded the plaintiff's entitlement to punitive damages. Coucher, 837 So. 2d at 485. St. Paul sought to prohibit any evidence of the driver's intoxication, arguing that such evidence would be prejudicial and lead to an excessive compensatory damages award. Id. That request was denied, and in its statement of the case, the trial court informed the jury that St. Paul and the driver had admitted liability and that the driver was intoxicated at the time of the accident. Id. After the first witness testified, the amount of punitive damages was settled. Id. No evidence of intoxication was presented nor was there any mention of intoxication thereafter. Id. at 485–86.

While much of the Coucher opinion revolved around the pleading of affirmative defenses, this Court went on to address whether the trial court had abused its discretion in denying St. Paul's motion to bifurcate the compensatory and punitive damage claims. Id. at 488. St. Paul had requested that the compensatory and punitive damage claims be heard by two different juries. Id. The Coucher court, relying upon Grace, affirmed the trial court's ruling, stating:

The trial court followed the bifurcation protocol established by the Florida Supreme Court in [ Grace ]. In Grace, the supreme court held that when there is a claim for punitive damages in a negligence action, the jury should hear evidence on negligence, compensatory damages, and liability for punitive damages in phase one, and then the same jury should determine the amount of punitive damages in phase two. Bifurcating in this manner will always result in a jury being questioned about, and hearing evidence of, alleged willful and wanton conduct in the same phase of the trial in which the jury is required to assess compensatory damages.

Id.

We find Coucher distinguishable. While the trial court advised the jury of the driver's intoxication as a part of its statement of the case, importantly, no evidence or mention of intoxication was made during the course of the trial.³ Although we acknowledge the language in Coucher is broad enough to encompass the issue presented in the instant case, that language is dicta. Notably, neither the Second District in Swanson, nor the Third District in Dixon, felt it necessary to either cite to, distinguish, or certify conflict with Coucher. To the extent Coucher is read to allow the presentation of intoxication evidence in the compensatory phase of a bifurcated trial when liability and entitlement to punitive damages are conceded, it is of no precedential value.⁴ We align ourselves with the Second and Third District Courts of Appeal in holding that under such circumstances, it is an abuse of discretion to allow such evidence.

The lack of relevancy and the...