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Jeffrey M. Edwards, as Personal Representative v. Jeffrey Rosen, M.D., et al., Case No. 2D14-3093 (2nd DCA)

In Edwards, the plaintiff appealed a final judgment entered in favor of the defendant doctor following a jury trial. The plaintiff's wife passed away while under the care of a team of physicians. The defendant, Dr. Rosen, was one of the physicians on that team. Dr. Rosen's answer contained a conditional Fabre affirmative defense, stating that should any co-defendant be dismissed from the case, Dr. Rosen adopted all allegations by the plaintiff against the dismissed defendant. On the eve of trial, the trial court ruled that the hospital could not be named on the verdict form because its liability would be strictly vicarious in nature, flowing from the conduct of two physician employees who were not named in the suit. In response, Dr. Rosen moved ore tenus to amend his Fabre defense to add the two physicians employed by the hospital. Over the plaintiff's objection, the trial court permitted the amendment. Trial started less than two weeks later.

At trial, the plaintiff's counsel presented evidence addressing the liability of each physician on the team, and acknowledged to the jury that each member of the team was partially at fault. The plaintiff's counsel specifically mentioned Dr. Rosen's Fabre defense to the jury. On the final day of trial, Dr. Rosen's counsel withdrew his Fabre defense. The plaintiff's counsel moved for a mistrial and for a curative instruction. The trial court denied the motion for mistrial, and reserved ruling on the curative instruction. The jury was later given a verdict form that asked only about the alleged negligence of Dr. Rosen. The jury entered a verdict in the doctor's favor. The plaintiff later moved for a new trial, which the trial court denied. The trial court expressed concern about the defendant's tactics, and noted that the plaintiff did not move to amend the pleadings to Fabre defendants to the suit. The plaintiff appealed.

The Second District found it was error to deny the plaintiff's motion for new trial. "A trial court should grant a motion for new trial when the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record." The Second District found that the sequence of events in this case -- the belated amendment to the Fabre defense, the last minute withdrawal of the defense, and the trial court's failure to give a curative instruction to the jury -- generated prejudice that the plaintiff's counsel could not cure. The defendant's actions created a situation in which the plaintiff presented a case premised on the fact that the jury would apportion fault between Dr. Rosen and the Fabre defendants, only to have the jury instead decide the case on an all-or-nothing basis.

The Second District noted that courts have previously addressed this tactic in the context of contributory negligence. In those cases, though, the courts have found that the plaintiff may amend the pleadings to include comparative fault, when the defendants employ such a tactic. Those opinions have found that a defendant should not be able to control the plaintiff's theory of his case and preclude the plaintiff from accepting some responsibility for his or her injuries. Where this case differs, however, is that despite the trial court's comments about amendment of the pleadings, the plaintiff had no ability to amend the pleadings to include Fabre defendants. The Second District noted that while a plaintiff can amend the complaint to accept some degree of fault, there is no authority for a plaintiff to amend a complaint to add non-party defendants to a verdict form. The Second District additionally noted that a defendant may waive defenses, but that does not give a defendant a right carte blanche to engage in gamesmanship or abuse procedure. Accordingly, the Second District reversed the final judgment, and remanded for a new trial.

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