IN THE SUPREME COURTOF THE STATE OF FLORIDA

CASE NO. SC 14-694

OTIS J. McDUFFIE,

Petitioner,

v.

JOHN W. URIBE, M.D.,

Respondent. /

RESPONDENT JOHN W. URIBE, M.D.'SBRIEF ON JURISDICTION

On Discretionary Review From a Decisionof the Third District Court of Appeal

CARLTON FIELDS JORDEN BURT, P.A.Attorneys for Respondent John W. Uribe, M.D.Suite 4200, Miami Tower100 Southeast Second StreetMiami, Florida 33131Telephone: (305) 530-0050Facsimile: (305) 530-0055By: WENDY F. LUMISH

ALINA ALONSO RODRIGUEZDAVID L. LUCK

Filing # 13475635 Electronically Filed 05/09/2014 10:47:19 AM

RECEIVED, 5/9/2014 10:48:38, John A. Tomasino, Clerk, Supreme Court

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................................................................... ii

STATEMENT OF THE CASE AND FACTS .......................................................... 1

SUMMARY OF THE ARGUMENT ........................................................................ 2

ARGUMENT ............................................................................................................ 3

I. THERE IS NO CONFLICT WITH MURPHY .............................................. 3

A. Petitioner's Conflict Argument Violates the "Four Corners"Rule....................................................................................................... 3

B. Based On The District Court's Actual Decision, There Is NoConflict With Murphy .......................................................................... 5

CONCLUSION ......................................................................................................... 8

CERTIFICATE OF SERVICE .................................................................................. 9

CERTIFICATE OF COMPLIANCE ...................................................................... 10

i

TABLE OF AUTHORITIES

Page

Cases

Companioni v. City of Tampa,51 So. 3d 452 (Fla. 2010) ................................................................................ 6

Delhall v. State,95 So. 3d 134 (Fla. 2012) ................................................................................ 7

Hearndon v. Graham,767 So.2d 1179 (Fla. 2000) ............................................................................. 7

Murphy v. Intl Robotics Sys., Inc.,766 Sa. 2d 1010 (Fla. 2000) ...................................................................passim

Reaves v. State,485 So. 2d 829 (Fla. 1986) .............................................................................. 4

Seaboard Air Line R.R. v. Ford,92 So. 2d 160 (Fla. 1955) ................................................................................ 7

Wallace v. Dean,3 So. 3d 1035 (Fla. 2009) ............................................................................3, 5

Other Authorities

3 FLA. JuR. 2D APPELLaTE REv1Ew § 365 (2014) ..................................................... 7

The Operation and Jurisdiction of the Supreme Court of Florida,29 Nova L. REv. 431 (2005) .......................................................................... 4

Rules

Fla. R. App. P. 9.210 ............................................................................................... 10

ii

STATEMENT OF THE CASE AND FACTS

The Third District's decision contains the following limited statement of the

case within its four corners:

After a malpractice jury verdict in favor of the appellant, Otis J.McDuffie, the trial judge, granted a motion for new trial on grounds of[1] improper use of a textbook during direct and cross examination attrial, [2] improper inference concerning the use of steroids and [3]improper comments in closing argument. An appeal was taken fromthe trial court's order. This Court relinquished jurisdiction to the trialcourt for entry of an order specifying the particular grounds thatserved as a basis for the trial court's order granting a new trial. SeeFla. R. Civ. P. 1.53Q(~. In compliance, the trial court filed an ordergranting new trial and stated the court's grounds supporting the grantof a new trial. McDuffie filed a petition for writ of prohibition toprohibit the trial judge from presiding over the case and to quash thenew trial order filed in compliance with Florida Rule of CivilProcedure 1.5300. The parties filed a second set of briefs, and oralargument was rescheduled.

Slip op. at 2 (bracketed numbering supplied).

The Third District held that the trial court did not abuse its discretion in

ordering a new trial because the three categories of "complained of errors

cumulatively rose to the level where they permeated the entire trial and were

fundamental so as to deprive the appellee, Dr. Uribe, of a fair trial." Slip op. at 2-3.

The district court cited a number of decisions related to these issues.

1

SUMMARY OF THE ARGUMENT

Petitioner bases his conflict argument on misapplication of Murphy v.

International Robotics Systems, Inc., 766 So. 2d 1010 (Fla. 2000), regarding the

appropriate standard for fundamental error. There is no conflict.

The purported misapplication does not appear within the four corners of the

district court's decision. Murphy established the fundamental error standard for

unpreserved improper closing argument. However, the decision below held that

three categories of error —only one of which dealt with closing —cumulatively rose

to the level that they were so fundamental as to deprive Dr. Uribe of a fair trial.

The district court did not detail the specific circumstances surrounding any of these

cumulative errors, and it never said that each was unpreserved.

Even if it were necessary to consider whether the decision below misapplied

Murphy, there is no conflict for at least three reasons. First, Murphy set forth the

test for fundamental error as to improper closing argument, but this case involves

not only closing, but also two evidentiary issues. Second, the decision below did

not attempt to articulate a different test for fundamental error as to improper

closing argument, other attorney misconduct, or evidentiary issues. Finally,

Murphy did not alter the law on cumulative error. As such, the district court's

decision did not involve the same legal context as Murphy, nor did it address

2

substantially similar controlling facts. There is no conflict, and this Court should

deny review.

ARGUMENT

I. THERE IS NO CONFLICT WITH MURPHY.

Petitioner contends the district court's decision conflicts with Murphy v.

International Robotics Systems, Inc., 766 So. 2d 1010 (Fla. 2000), because it

misapplies the standard for assessing fundamental error. Misapplication conflict

requires a petitioner to establish that the district court applied "a rule of law to

produce a different result in a case that involves substantially similar controlling

facts as a prior case disposed of by this Court or another district court." Wallace v.

Dean, 3 So. 3d 1035, 1039 n.4 (Fla. 2009). Petitioner fails to demonstrate

misapplication conflict. Instead, this is nothing more than Petitioner's plea for an

unwarranted second appeal. This Court should deny his Petition.

A. Petitioner's Conflict Argument Violates the "Four Corners"Rule

In determining whether it has jurisdiction, this Court is restricted to the four

corners of the district court's decision below:

[C]onflict must "appear within the four corners of the majoritydecision" brought for review. There can be no examination of therecord, no second-guessing of the facts stated in the majority decision,and no use of extrinsic materials to clarify what the majority decisionmeans.

K?

Justices Harry Lee Anstead & Gerald Kogan, et al., The Operation and

Jurisdiction of the Supreme Court of Florida, 29 NovA L. REv. 431, 512 (2005)

(quoting Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986)). Petitioner's conflict

argument depends on several violations of this established rule.

First, Petitioner presupposes that the three categories of error on which the

district court premised its holding were unpreserved and therefore implicate the

principle of fundamental error. But the district court never stated that each of the

errors raised was unpreserved, and, indeed, said nothing about the number or

timing of objections regarding the three categories of error it identified.

Along these same lines, and contrary to Petitioner's representations to this

Court, the district court's decision says nothing to the effect that defense counsel

made intentional decisions not to object at trial and does not identify "the things of

which [counsel] complained of for the first time after trial." (Pet. Br. at 8).

Further, from the face of the district court's opinion, a Florida practitioner

would be unable to determine whether the closing argument comments of

Petitioner's counsel "come nowhere close to satisfying the stringent standard for

fundamental error adopted by the Court in Murphy" or, more fundamentally,

whether Murphy even has any application here. (Id. ). Indeed, Petitioner concedes

as much when he notes that "[n]othing in the district's court's opinion even

arguably suggests that the errors complained of were appeals to racial, ethnic, or

religious prejudices — or anything of the sort." (Pet. Br. at 5).

Given that the four corners of the decision below do not detail the specific

circumstances surrounding any of the errors, the district court's opinion does not

contain "substantially similar controlling facts as a prior case disposed of by this

Court or another district court" such that it would be apparent that there is an

express and direct conflict. Wallace, 3 So. 3d at 1039 n.4.

Petitioner's argument is nothing more than a plea for an unwarranted second

appeal as evidenced by his attempt to lure this Court into accepting review by

offering an impermissible preview of what he contends the facts of his merits brief

might reflect. (See Pet. Br. at 8).

B. Based On The District Court's Actual Decision, There Is NoConflict With Murphv

Even if it were necessary to consider whether the decision below misapplied

Murphy, there is no conflict based on what the district court actually wrote. The

entirety of the Third District's analysis is that the three categories of error it

identified in its holding "cumulatively rose to the level where they permeated the

entire trial and were fundamental so as to deprive the appellee, Dr. Uribe of a fair

trial." Slip op. at 2-3. Petitioner suggests that this language reverts back to pre-

Murphy cases and that Murphy has eviscerated those decisions. (Pet. Br. at 2-4).

E

First, Murphy set forth the test for fundamental error as to attorney

misconduct during closing argument. Likewise, and contrary to Petitioner's

assertion, this Court's subsequent decision in Companioni v. City of Tampa, 51

So. 3d 452 (Fla. 2010), dealt only with the standard for fundamental error related

to attorney misconduct during trial. In contrast, the first two categories of error at

issue here —improper use of a textbook as substantive evidence and improper

inferences regarding steroids —dealt with evidentiary issues, not improper closing

argument or attorney misconduct.

Second, the decision below did not attempt to articulate a different test for

fundamental error as to improper closing argument, other attorney misconduct, or

evidentiary issues. Rather, it held that the three categories of error it identified

cumulatively rose to the level that they were so fundamental as to deprive Dr.

Uribe of his right to a fair trial. Slip op. at 2-3.

Finally, Petitioner's argument conflates fundamental error and cumulative

error. Murphy did not eviscerate the law on cumulative error. This Court has long

held that it is appropriate to evaluate claims of error cumulatively to determine if

the errors collectively deprived the defendant of its fundamental, inalienable right

to a fair trial:

[E]ven though each of the alleged errors, standing alone, could beconsidered harmless, the cumulative effect of such errors was such asto deny to defendant the fair and impartial trial that is the inalienableright of all litigants in this state and this nation.

Seaboard Air Line R.R. v. Ford, 92 So. 2d 160, 165 (Fla. 1955), partially receded

from on other grounds by Hearndon v. Graham, 767 So.2d 1179, 1184 (Fla. 2000)

(clarifying delayed-discovery doctrine); see also, e.g., Delhall v. State, 95 So. 3d

134, 166, 169-70 (Fla. 2012) (articulating same cumulative error rule in capital

case; holding that cumulative errors "fundamentally tainted" the proceedings

below, thereby requiring a new penalty-phase trial); 3 FLA. JUR. ZD APPELLATE

REv~Ew § 365 (2014) (collecting cases on cumulative error review).

That is precisely what the district court did here, and its analysis is entirely

consistent with Murphy's repeated recognition of a trial court's superior vantage

point and discretion in determining the gravity and effect of an error. See, e.g.,

Murphy, 766 So. 2d at 1023 ("First, this Court has recognized that a trial judge is

in the best position to determine both the propriety of counsel's closing argument

and any possible prejudice resulting from any improper argument."); id. at 1026

(requirement that the issue be first raised in a motion for new trial "ensure[s] that

the trial judge, who is in the best position to determine the propriety and potential

impact of allegedly improper closing argument, has an opportunity to make [] such

a determination"); id. at 1036 ("We find that appellate courts must apply the abuse

of discretion standard of review because applying such standard sufficiently

recognizes that the trial judge is in the best position to determine the propriety and

potential impact of allegedly improper closing argument.").

%I

There is no conflict, and this Court should deny review.

CONCLUSION

Based on the foregoing, Dr. Uribe respectfully requests that this Court

decline to exercise its discretionary jurisdiction.

Respectfully submitted,

CARLTON FIELDS JORDEN BURT, P.A.Attorneys for RespondentJohn W. Uribe, M,D.Suite 4200, Miami Tower100 Southeast Second StreetMiami, Florida 33131Telephone: (305) 530-0050Facsimile: (305) 530-0055

By:WENDY F. LUMISHFlorida Bar No. 334332Email: wlumish@cfjblaw.comALINA ALONSO RODRIGUEZFlorida Bar No. 178985Email: arodriguez@cfjblaw.comDAVID L. LUCKFlorida Bar No. 041379Email: dluck@cfjblaw.com

~3

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing has

been Electronically Filed and served via Email this 9th day of May, 2014, to:

Joel Eaton (jeaton(a~odhurst.com; dricker(a,podhurst.com), Podhurst Orseck,

Counsel for Plaintiff-Petitioner, 25 West Flagler Street, Suite 800, Miami, FL

33130; Herman J. Russomanno (hrussomanrio(a~russomanno.com), Robert J.

Borrello (rborrello ca russomanno.com), and Herman J. Russomanno, III

(herman2(cr~,russomanno.com), Russomanno & Borrello, P.A., Co-Counsel for

Plaintiff-Petitioner, Museum Tower —Penthouse 2800, 150 West Flagler Street,

Miami, FL 33130; and Stuart N. Ratzan (stuart(a~ratzanlawgroup.com), Ratzan

Law Group, P.A., Co-Counsel for Flaintiff-Petitioner, 1450 Brickell Avenue, Suite

2600, Miami, FL 33131; Charles Michael Hartz (chuckhartz(~ e~or~ehartz.com),

Counsel for Defendant-Respondent, George Hartz, P.A., 4800 Le Jeune Road,

Coral Gables, Florida 33146.

By:WENDY F. LUMISH

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this brief complies with the font

requirements set forth in Florida Rule of Appellate Procedure 9.21 Q by using

Times New Roman 14-point font.

WENDY F. LLTMISH29578045