Background
Norma Velez Rivera sued Leidimar Lopes for injuries from a motor-vehicle collision. Lopes identified the driver of Velez Rivera’s vehicle, Hector Manuel Santana, as a nonparty at fault. At trial, the parties disputed causation, permanency, and damages. Velez Rivera’s surgeon testified that the crash caused a herniated disc and permanent injuries, while defense experts attributed her condition to preexisting degeneration or, at most, a nonpermanent sprain or strain.
A Family Medical Group record included a notation assigning Velez Rivera a four-percent permanent whole-body impairment rating. The trial court redacted that notation as inadmissible hearsay, a ruling Velez Rivera did not challenge. In closing, Lopes’s counsel argued that no one at Family Medical Group had rendered a permanency opinion. Velez Rivera objected, rejected the court’s proposed curative instruction, and sought to reopen the evidence to admit the redacted notation. The jury found no permanent injury, apportioned fault 65% to Lopes and 35% to Santana, and awarded past medical expenses. The trial court denied a new trial and entered a reduced final judgment of $10,834.34.
The Court’s Holding
The Fourth District affirmed. It held that counsel may point out the absence of properly excluded evidence because the jury may consider only admitted evidence. Cases condemning closing arguments about evidence that counsel had excluded involved improperly excluded evidence or misleading claims about why a witness or evidence was absent; they did not establish a rule barring argument about the absence of evidence properly excluded as hearsay.
The court held that defense counsel’s categorical statement that no Family Medical Group provider had ever rendered a permanency opinion was objectively untrue and thus improper. But the error was harmless because the central point—that Velez Rivera had introduced no admissible Family Medical Group permanency finding—was accurate, and there was no reasonable possibility that the phrasing affected the verdict. The court also held that Velez Rivera waived any challenge to the proposed curative procedure by rejecting it and that the trial court acted within its discretion in refusing to reopen the evidence to admit the same inadmissible hearsay.
Key Takeaways
- Closing argument may address the absence of evidence that was properly excluded under the rules of evidence.
- Counsel should accurately frame the point as an absence of evidence heard by the jury, rather than deny that an excluded statement was ever made.
- An isolated inaccurate closing remark is not reversible in a civil case absent a reasonable possibility that it contributed to the verdict.
Why It Matters
The decision distinguishes cases in which counsel exploits a trial court’s erroneous exclusion of evidence from cases involving evidence properly excluded as inadmissible hearsay. It confirms that evidentiary exclusion generally leaves a party free to argue from the record actually before the jury.
For trial lawyers, the opinion also underscores the value of precise closing-argument language and of accepting or proposing an appropriate curative instruction when an opponent’s phrasing crosses the line.