Florida Case Law

GATTEN v. ZACHAR, 932 So.2d 543 (Fla.App. 5 Dist. 2006)
Evelyn GATTEN, Appellant, v. Lenka ZACHAR, M.D., Appellee.
No. 5D05-2981. District Court of Appeal of Florida, Fifth
District. June 23, 2006.

Appeal from the Circuit Court, Lake County, Don F. Briggs,
J. Page 544

Keith Mitnik, of Morgan and Morgan, P.A., Orlando, for

Griffith J. Winthrop, III and Julianne J. Flynn, of
Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for


In this medical malpractice action, Evelyn Gatten appeals
the trial court’s final order entering judgment in favor of
Dr. Lenka Zachar. Gatten has failed to establish harmful
error and, accordingly, we affirm.

Gatten sued Dr. Zachar, both individually and as the
personal representative of her late husband John’s estate,
alleging that Mr. Gatten died as the result of Dr. Zachar’s
negligent medical care. The matter went to trial before a
jury. Upon review of the evidence presented, the jury
returned a verdict finding that there was no negligence on
the part of Dr. Zachar which was a legal cause of Mr.
Gatten’s death. The trial court entered judgment against
Gatten in accordance with the jury’s verdict. This appeal
timely followed.

Gatten argues that the trial court reversibly erred in
denying her motion for mistrial which was raised following
the close of defense counsel’s opening argument. We

In White v. Consolidated Freightways Corp. of Delaware,
766 So.2d 1228 (Fla. 1st DCA 2000), the First District
summarized the applicable standard of review as follows:

“[A] trial court’s ruling on a motion for mistrial is
subject to an abuse of discretion standard of review.” See
Goodwin v. State, 751 So.2d 537, 546 (Fla. 1999). “Whether
a trial court should grant a mistrial is within that
court’s discretion, and a mistrial should not be granted
unless an absolute legal necessity to do so exists.” See
Ratley v. Batchelor, 599 So.2d 1298, 1302 (Fla. 1st DCA
1991). Cf. Nigro v. Brady, 731 So.2d 54, 56 (Fla. 4th DCA
1999). In reviewing such discretionary act, the appellate
court should apply the [Canakaris v. Canakaris, 382 So.2d
1197 (Fla. 1980)] reasonableness test. See Baptist
Memorial Hospital, Inc. v. Bell, 384 So.2d 145, 146 (Fla.

Id. at 1232 (footnote omitted).

Defense counsel began his opening argument by stating:

Ladies and gentlemen, thank you for listening to this
case and I want to thank you on behalf of my client, Dr.
Zachar, for spending the time throughout this week
listening to us. This is a very important time for Dr.
Zachar. She is being challenged, her livelihood is being
challenged. Page 545

(Emphasis added). Plaintiff’s counsel immediately objected,

Nobody is challenging her livelihood. That’s totally

The trial court responded:

I agree. The jury will disregard that remark. Livelihood
is not being challenged.

Following the close of both opening arguments, plaintiff’s
counsel made a verbal motion for mistrial stating:

[T]hat comment about attacking livelihood which goes
straight to all this publicity about three strikes and
you’re out. That was egregious, ain’t even close to
appropriate and I don’t think a curative fixes it.

Defense counsel responded by arguing that Ms. Gatten’s
lawsuit was in fact a personal attack on Dr. Zachar’s
profession and that his comment just stated the obvious.
The trial court denied the mistrial motion, noting:

Well, I don’t think it’s so egregious as to require a
mistrial, but I caution y’all that we have talked about
this litigation — or, excuse me, legislation and
publicity and all those things and try to stay away from
that. And, frankly, my sense of that was the comment went
more to the three strikes deal than it did to anything
else when you’re challenging livelihood.

Ms. Gatten has failed to sustain her burden of proving that
the trial court abused its discretion in denying her
mistrial motion since she has made no showing that there
was “an absolute legal necessity” for the court to grant
the motion. See White, 766 So.2d at 1232. The trial court
not only sustained plaintiff counsel’s objection to defense
counsel’s comment but also issued a contemporaneous
curative instruction clearly informing the jury that Dr.
Zachar’s livelihood was not being challenged and that the
jury was required to disregard defense counsel’s remark.

Although we do not condone the improper statement made by
defense counsel, we find no error in the manner in which
the trial court dealt with Ms. Gatten’s objection.


PLEUS, C.J., and TORPY, J., concur.