Velez Rivera v. Lopes
In a personal-injury auto case, defense counsel successfully excluded as hearsay a Family Medical Group notation assigning plaintiff a 4% permanent impairment rating, then argued in closing that no one at that facility ever rendered a permanency opinion. The Fourth DCA affirmed the denial of a mistrial and new trial, holding that counsel may properly point out the absence of properly excluded evidence, distinguishing Hernandez/JVA Enterprises (which involved improperly excluded evidence), and finding any imprecision in counsel's phrasing harmless.
Key facts
- Plaintiff Velez Rivera brought a personal-injury auto case against defendant Lopes; defendant's counsel excluded as hearsay a Family Medical Group notation assigning plaintiff a 4% permanent impairment rating.
- At trial, defense counsel argued in closing that no one at Family Medical Group ever rendered a permanency opinion, and the trial court denied plaintiff's motions for mistrial and new trial.
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Why it matters
This opinion draws a clear line the Fourth DCA had not previously articulated: the 'gotchaism' rule from Hernandez v. Home Depot and JVA Enterprises applies only where the evidence was improperly excluded. Trial counsel… — full analysis with a trial
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