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Borden Dairy Co. of Alabama, LLC, et al. v. Susanne Kuhajda, Case No. 1D13-4896 (1st DCA)

In Kuhajda, the First DCA affirmed a verdict in favor of the plaintiff in an automobile accident suit. The plaintiff was injured when she was involved in an accident with a truck being driven by defendant, Major Greenrock, an employee of defendant Borden Dairy. At trial, Greenrock testified live, but was impeached by the plaintiff with use of a videotaped deposition. The videotaped deposition of Greenrock was admitted into evidence without objection. The plaintiff later informed the court and the defense that she intended to use portions of Greenrock's videotaped deposition during closing. The defense objected, and the court later permitted use of the videotaped deposition. The jury returned a verdict finding the defendant to be one hundred percent responsible. The defendant moved for a new trial arguing the trial court erred in permitting the plaintiff to play portions of the videotaped deposition during closing argument. The trial court denied the motion.

The First DCA explained that to receive a new trial in a civil case based on a closing argument, the complaining party must first establish that the argument being challenged is improper. The court further noted that in determining whether a challenged argument is improper, the trial court must consider whether the attorney confined closing argument to the facts and evidence presented to the jury, and whether the argument improperly invoked emotional responses from the jury which could have affected the verdict. The First DCA stated that parties are to be granted "great latitude" in argument before a civil jury. The First DCA concluded that the trial court did not abuse its discretion by allowing the plaintiff to use portions of Greenrock's videotaped deposition during closing argument.

The First DCA noted that the trial court admitted Greenrock's videotaped deposition pursuant to Florida Rule of Civil Procedure 1.330, which provides that the deposition of a party may be used by an adverse party for any purpose. The First DCA noted that not only was admitting Greenrock's deposition within the trial court's discretion, but it would have been reversible error to bar the use of deposition testimony by a party when such use is expressly authorized pursuant to the rules. In addition, the court noted that while there is no Florida case law discussing the issue, there is no absolute prohibition from using videotaped depositions during closing argument. While it would have been error to present facts to the jury that were not presented in the taking of evidence, the record demonstrated that the evidence at issue was presented to the jury. Greenrock's videotaped deposition was admitted into evidence, Greenrock testified live at trial, and most of the deposition testimony shown to the jury during closing had been used during the trial to impeach Greenrock. Therefore, because rule 1.330(a)(2) allows the deposition of a party to be used for any purpose and the deposition of Greenrock was properly admitted into evidence, the trial court's decision to allow portions of the videotaped deposition to be played during closing was affirmed.

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