MIAMI (Legal Newsline) - A Florida appeals court reinstated the personal injury verdict a bodybuilder won despite having withheld until the week before trial evidence that he’d been treated by an orthopedic surgeon for the same type of injury he blamed on a car accident.
Saying the defense “gambled and lost,” the Third District Court of Appeal on Feb. 17 reversed a trial judge’s decision to dismiss Jean Carlos Salazar’s case because of fraud on the court. Defense lawyers should have moved to delay the trial or asked for a mistrial during the proceedings, the court of appeals said, rather than presenting Salazar’s “inconsistencies” about prior medical issues to jurors and hoping they would rule against him.
Salazar, a 23-year-old bodybuilder and personal trainer, sued the driver of a car involved in an accident with him, saying he sustained neck injuries and a herniated disk that required surgery. In a pretrial deposition, he testified he had been involved in a previous “fender-bender” and had received physical therapy for exercise-related aches and pains, but had never been treated by an orthopedic surgeon.
A week before trial, defense lawyers for Miguel Gomez received medical records showing that before the accident, Salazar had seen an orthopedic surgeon who treated him for head and neck pain. The appeals court said those records “on their face, appeared to contradict Salazar’s prior testimony,” which was that he hadn’t seen an orthopedic surgeon.
The proper tactic when presented with such evidence would be to seek a continuance for more discovery, or move for a mistrial, the appeals court said. But the defense did neither, instead grilling Salazar on the stand. The plaintiff acknowledged to the jury “he may have misspoken” when he denied under oath having been treated by an orthopedic surgeon, when in fact he had.
The jury apparently was unfazed and found the driver of the other car 61% negligent for Salazar’s neck injuries, awarding him past and future medical expenses. The defense moved for dismissal, saying Salazar had lied about questions central to his allegations in the case. The judge agreed and dismissed with prejudice, citing a prior Third District decision throwing out a jury verdict in a case in which the plaintiff lied about questions central to the case.
That previous case could be distinguished, the Third District said. First, the defense there had moved to dismiss during the trial, instead of waiting until the end. More importantly, the plaintiff’s lies in the former case emerged during trial. Salazar revealed his prior visit to the orthopedic surgeon a week before trial, giving the defense time to respond, the court ruled.
“We have little doubt that, in the instant case, the plaintiff gave inconsistent testimony. This inconsistent testimony, however, was known to defense counsel before trial and tested via cross-examination and re-direct,” Judge Monica Gordo wrote. “Importantly, both sides presented their respective theories of the evidence to the jury, and the jury was fully appraised of the alleged inconsistencies so as to be able to determine whether Salazar lied or provided a reasonable explanation.”
“The jury, by its verdict, implicitly rejected the theory that Salazar’s inconsistencies were lies.”