Aills v. Boemi

Summary

The Florida Second District Court of Appeal reviewed a medical malpractice judgment involving claims concerning surgical negligence, informed consent, battery, and fraud. The court held that the trial court erred by allowing plaintiff's counsel to argue an unpleaded and untried theory of postoperative negligence, and it remanded for a new trial on all issues. The court affirmed the denial of the defendant's motion for a directed verdict on liability and found the remaining damages issues moot.

Holdings

1. A theory of medical negligence that was not pleaded and was not tried by express or implied consent may not be submitted to the jury over an appropriate objection.
2. Although attorneys have broad latitude in closing argument, argument must be confined to the evidence, the issues, and reasonable inferences from the evidence; counsel may not urge liability on a theory outside the issues presented at trial.
3. The error was not harmless where the general verdict could have rested on the unpleaded theory, the defense had no notice or opportunity to rebut it, and the contested negligence theories were otherwise vigorously disputed.
4. The two-issue rule does not permit affirmance of liability where the general verdict may have rested on a theory that was neither pleaded nor tried by consent.
5. The trial court did not err in denying Boemi's motion for a directed verdict on liability.
6. The trial court did not abuse its considerable discretion in denying Boemi's motion for a new trial based on admission of the photographs.

Questions Presented

1. Whether the trial court erred in denying Boemi's motion for a directed verdict on medical-negligence liability.
2. Whether the trial court abused its discretion by denying a new trial after Aills's counsel argued an unpleaded and untried theory of postoperative negligence during closing argument.
3. Whether the challenged closing argument was harmless.
4. Whether the two-issue rule precluded reversal despite the general verdict.
5. Whether the trial court abused its discretion in admitting graphic photographs.
6. Whether the appellate court should reach the parties' challenges to remittitur and future medical expenses after ordering a new trial on all issues.

Disposition

reversed_and_remanded