Opinion
No. 88-2248.
May 9, 1990. Rehearing Denied June 13, 1990.
Appeal from the Circuit Court, Broward County, John T. Luzzo, J.
Arnold R. Ginsberg of Horton, Perse Ginsberg and Ratiner Glinn, P.A., Miami, for appellant/cross appellee.
Philip D. Parrish of Stephens, Lynn, Klein McNicholas, P.A., Miami, for appellees/cross appellants.
Appellant, the mother and personal representative of her deceased seven month old daughter, seeks review of certain evidentiary rulings made in the medical malpractice trial below.
During the trial, appellant's former husband was questioned about their divorce and his remarriage. The husband filed for divorce about four months after their daughter's death. The jury heard that the husband's petition for dissolution contained allegations that he should have custody of their surviving child because appellant was "mentally unstable" and not a fit and proper mother.
Evidence of a divorce is relevant where a surviving spouse brings an action for the wrongful death of his or her spouse. § 768.21(6)(c), Fla. Stat. (1985); Smyer v. Gaines, 332 So.2d 655 (Fla. 1st DCA 1976). Evidence of a divorce is usually irrelevant where a parent brings an action for the wrongful death of his or her child because each parent individually has the right to recover damages for the loss of the child regardless of the state of their marriage. McDonald v. Forman, 238 So.2d 131 (Fla. 4th DCA), cert. denied, 240 So.2d 639 (Fla. 1970).
But sub judice, the appellees raised comparative negligence as a defense. The defendant doctors set out to prove that the child's death was caused in part by the parents' lack of care. We hold that the comparative negligence issue made the allegations in the husband's petition relevant.
On direct examination the husband first broached the subject of their divorce. Also on direct examination the husband testified that his wife was a good mother to their deceased child. On cross examination the husband was asked about the allegations in his petition for dissolution. We find this cross examination was proper because the signed petition is a prior inconsistent statement of the husband. As stated by the dissent in Seaboard Coastline Railroad v. Hill, 270 So.2d 359 (Fla. 1972):
[Plaintiffs' counsel] Q. You have since divorced from Rosalyn Mapps?
A. Yes, I have.
Q. All right. Did that divorce take place approximately four months or so after [your daughter] died?
A. I filed [sic] petition approximately four months after. It was finalized a year later.
A law suit must be tried in an atmosphere of truth. The witnesses are sworn to tell the WHOLE truth. We recognize that certain evidence must be withheld from consideration when it is truly irrelevant or so prejudicial as unfairly to affect the trial and a fair consideration of the evidence which is relevant. However, we cannot conjure up a fictitious set of circumstances for a jury to evaluate and withhold the true facts.
On redirect examination the husband explained away the allegations when he attributed their creation to his divorce attorney and their basis to appellant's post death emotional condition. We find that the probative value of the allegations in the petition for dissolution was not substantially outweighed by the danger of unfair prejudice, but even if it were, we find that any such danger was neutralized by the husband's redirect testimony and any resulting error was harmless. § 90.403, Fla. Stat. (1985). We acknowledge that the allegations of the husband's petition referred to their surviving child. However, we find such evidence to be relevant as we believe a lack of care for one child is intertwined with a parent's ability to care for his or her other children. We note that just over one hundred days separated the child's death and the date the husband filed his petition for dissolution.
Accordingly, we affirm as to all issues raised by appellant. Based on our affirmance, the cross appeal is considered withdrawn.
AFFIRMED.
GUNTHER, J., concurs.
GLICKSTEIN, J., dissents with opinion.
I would reverse and remand for new trial.
Lora Mapps, the seven-month-old daughter of the appellants (now divorced), died, and her parents sued the attending pediatrician, alleging negligence in his failure to diagnose a Wilms tumor. Testimony showed that survival rate of a stage I Wilms tumor is 100%.
One of the pediatrician's defenses was that the parents were negligent in failing to monitor the child's condition upon release from the hospital. The pediatrician testified that he advised the mother to bring the child to his office if, among other things, the baby's fever rose or appetite diminished. Another defense was that the child's death was caused not by the tumor but by a terminal cardiac condition called EFE.
Before trial, the parents argued "in limine" and sought, unsuccessfully, to keep the pediatrician from presenting evidence to the jury that on August 9, 1985, three and one-half months after the death of their child, the father filed for dissolution of marriage. The pediatrician was also allowed to introduce the amended petition for dissolution, signed by the father, which alleged that the mother was not a fit and proper person to have custody of their surviving child because she was mentally unstable.
The jury returned a verdict, finding the pediatrician 51% negligent and each parent 24.5% negligent.
The petition for dissolution was filed after the child's tragic death; the allegations by the husband as to the wife alluded to the surviving child, not the deceased child; and the husband — required to testify because the motion in limine was denied — said:
I signed that, sir, but I had an attorney when I filed for that divorce. The way I asked him to represent me he said that I was being too lenient. If I wanted visitation or custody with my child so he felt we needed to use stronger language or whatever in that petition.
. . . .
I didn't say put this in or put that in. He said we needed something for effective [sic].
. . . .
My only concern — I wanted to see my child, that I had just lost a daughter and everything in my life was gone.
In my judgment, an unfair element was inserted into otherwise legitimate issues between the parties; and the error was harmful. It brought to mind my perception of harmful error in Trees v. K-Mart Corp., 467 So.2d 401 (Fla. 4th DCA 1985) (Glickstein, J., dissenting).