TALLAHASSEE — In a split 4-3 decision, the Florida Supreme Court recently sided with a 6-year-old kidney transplant patient's family who an appeals court said resorted to unfair tactics to secure a $4.1 million trial court award in a medical malpractice case.

The state Supreme Court quashed a contrary Third District Court of Appeal's decision and ruled that the trial court had not abused its discretion in allowing physicians of a now-grown patient to testify and permitted a pathology expert's rebuttal testimony, according to the Supreme Court's 28-page opinion issued March 22. 

Chief Justice Jorge Labarga
Chief Justice Jorge Labarga

"We further hold that any prejudice attributable to comments made during petitioners' closing argument was insufficient to warrant a new trial," Florida Supreme Court Chief Justice Jorge Labarga said in the high court's majority ruling. "We therefore quash the decision of the Third District with respect to those issues."

The Supreme Court also declined to address the Third District's affirmation of the trial court's denial of a motion for directed verdict.

Chief Justice Labarga wrote the court's majority opinion in which Justice Barbara J. Pariente, Justice R. Fred Lewis and Justice Peggy A. Quince concurred. Justice Charles T. Canady, Justice C. Alan Lawson and Justice Ricky Polston dissented.

Petitioners Monica A. Gutierrez, who will be 18 in August, and her parents Javier and Monica E. Gutierrez had appealed the Third District's earlier decision in Vargas v. Gutierrez "on the ground that it expressly and directly conflicts with decisions of other district courts of appeal on a question of law," Chief Justice Labarga said in the Supreme Court's ruling.

The Gutierrezes filed the medical malpractice action against Monica Gutierrez's former pediatrician, Jose Luis Vargas, for allegedly failing to diagnose the younger Gutierrez with chronic kidney disease that required a transplant in May 2007, according to the background portion of the Supreme Court's ruling.

At trial, both sides relied heavily on expert testimony and during pretrial proceedings the trial court limited each party in the case to one retained expert per specialty. The first trial in August 2012 ended in a  mistrial after three days. The jury in the second trial in April 2013 awarded the Gutierrezes $3.8 million in damages.

After the Gutierrezes asked for additur, which the defense accepted, the trial judge raised the award to $4.1 million and denied Vargas' request for a new trial only on the issue of liability.

Vargas appealed, and in August 2015, the Third District ruled that the trial court had been wrong when it denied his motion for a directed verdict. The Third District reversed and remanded the case for a new trial, saying the Gutierrezes had "resorted to unfair tactics to secure a jury verdict in their favor," had violated the trial court's "one expert per specialty" rule "and for materially misrepresenting evidence in closing arguments."

The Gutierrezes appealed to the state Supreme Court, alleging the Third District conflicted with previous cases "because it improperly limits the testimony of treating physicians and rebuttal experts," the Supreme Court's ruling said.

In its conclusion, the state high court's majority held that the trial court had not abused its discretion in allowing the physicians to testify. "We also hold that the comment made by petitioners' counsel during closing argument does not merit a new trial," the ruling said.

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