        IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                            NOT FINAL UNTIL TIME EXPIRES TO
                                            FILE MOTION FOR REHEARING AND
                                            DISPOSITION THEREOF IF FILED


SAIRA HASHMI-ALIKHAN, M.D., HEALTH
FIRST, INC., HEALTH FIRST PHYSICIANS
GROUP, INC., CAPE CANAVERAL
HOSPITAL, INC. AND CAPE CANAVERAL
HOSPITAL FOUNDATION, INC.,

             Appellants,

v.                                               Case No. 5D16-3735

GERALDINE J. STAPLES, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
GLENN STAPLES, RANDALL B. RIGDON,
M.D., RANDALL B. RIGDON, LLC, DANIEL
J. CALABRESE, P.A., FIRAS R. MUWALLA,
M.D., ET AL.,

             Appellees.

________________________________/

Opinion filed March 29, 2018

Appeal from the Circuit Court
for Brevard County,
George W. Maxwell III, Judge.

Wilbert R. Vancol and Mary Jaye Hall, of
McEwan, Martinez, Dukes & Hall, P.A.,
Orlando, for Appellants.

Christopher V. Carlyle, of The Carlyle
Appellate Law Firm, Orlando, for Appellee
Geraldine J. Staples, as Personal
Representative of the Estate of Glenn
Staples.

No Appearance for Remaining Appellees.
EISNAUGLE, J.

       Appellants, Saira Hashmi-Alikhan, M.D., Health First, Inc., Health First Physicians

Group, Inc., Cape Canaveral Hospital, Inc., and Cape Canaveral Hospital Foundation,

Inc., appeal the trial court’s order granting a new trial in favor of Appellee, Geraldine

Staples, as Personal Representative of the Estate of Glenn Staples, based upon the

finding that the jury’s verdict was contrary to the manifest weight of the evidence. In its

order, the trial court concluded that Appellants’ expert witnesses “gave more general

opinions, and were not as knowledgeable to the hematological intricacies of the case.”

We reverse because the record does not support the trial court’s reasons for granting a

new trial.

       Appellee’s husband, Glenn Staples, a sixty-year-old male, presented to the

emergency room at Cape Canaveral Hospital at 5:00 p.m. on February 9, 2010, with a

platelet count of 1000. A platelet count of 10,000 is considered critically low, a normal

count is about 250,000 for a sixty-year-old. At such a low platelet count, life-threatening

and organ-threatening bleeds are a concern because the human body cannot adequately

form blood clots with so few platelets. By 7:30 p.m., Mr. Staples was diagnosed with

acute immune (or idiopathic) thrombocytopenia purpura (“ITP”), a blood disorder that

required treatment to halt his body’s destruction of platelets.

       Mr. Staples’ treating physician, Dr. Alikhan, examined Mr. Staples and consulted

with Dr. Muwalla, an on-call hematologist, to assist in managing her patient’s rare blood

disorder. Dr. Muwalla elected to return to the hospital to personally examine Mr. Staples.

At Dr. Muwalla’s recommendation, Dr. Alikhan ordered that Mr. Staples receive




                                             2
prednisone, a corticosteroid, and intravenous immunoglobulin (“IVIG”), to treat Mr.

Staples’ ITP. Dr. Alikhan did not order a platelet transfusion for Mr. Staples, and Dr.

Muwalla only recommended a platelet transfusion in the event of a “life-threatening

hemorrhage.”

       Mr. Staples was admitted to the hematology floor of the hospital at 8:40 p.m. His

nurse commenced administering IVIG at 10:20 p.m.; however, he experienced an

adverse reaction to the IVIG within fifteen minutes (sweating and vomiting), so the nurse

discontinued the IVIG and notified Dr. Muwalla. Dr. Muwalla ordered the nurse to restart

the IVIG as soon as Mr. Staples stabilized. Around midnight, the nurse called Dr. Muwalla

again to report on her inability to restart the IVIG due to Mr. Staples’ continuing condition.

In response, Dr. Muwalla ordered the nurse to discontinue the IVIG. The nurse conceded

she never administered the ordered prednisone to Mr. Staples. The following morning at

5:37 a.m., Mr. Staples was found unresponsive and without a pulse, which was about

twelve and a half hours after he presented to the emergency room. Although efforts to

resuscitate Mr. Staples were partially successful, he was significantly compromised,

never regained consciousness, and was declared brain dead at 9:45 a.m. A CAT scan

of Mr. Staples’ brain showed a catastrophic intracerebral hemorrhage, and he was

pronounced dead at 4:16 p.m. His cause of death was acute cerebral hemorrhage from

thrombocytopenia.

       During a two-week jury trial, the parties presented expert testimony on the

standard of care applicable to Dr. Alikhan, Dr. Muwalla, and the nurse who administered

the IVIG. Appellee offered expert testimony that Mr. Staples’ condition was treatable, and

that Dr. Alikhan and Dr. Muwalla breached the standard of care by (1) failing to order that




                                              3
       The jury returned a defense verdict. In response, Appellee filed a motion for a new

trial, arguing that the jury’s verdict was against the manifest weight of the evidence. The

trial court ultimately agreed and granted the motion. On appeal, Appellants argue that

the trial court abused its discretion in granting a new trial because the record does not

reflect that Appellants’ expert witnesses testified only generally or that they were less

knowledgeable regarding the hematological intricacies of the case. We agree.

       “When a motion for new trial is made it is directed to the sound, broad discretion

of the trial judge . . . .” Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959) (citations omitted).

“[T]he trial judge can and should grant a new trial if the manifest weight of the evidence

is contrary to the verdict.” Smith v. Brown, 525 So. 2d 868, 870 (Fla. 1988) (citation

omitted). Thus, a trial court should grant a new trial “if the jury has been deceived as to

the force and credibility of the evidence or has been influenced by considerations outside

the record.” Cloud, 110 So. 2d at 673 (citations omitted). “In making this decision, the

trial judge must necessarily consider the credibility of the witnesses along with the weight

of all of the other evidence.” Smith, 525 So. 2d at 870 (citation omitted). Nevertheless,

the trial court may not act as a seventh juror by substituting its verdict for that of the jury,

and “should only intervene when the manifest weight of the evidence dictates such

action.” Id.; see also Brown v. Estate of Stuckey, 749 So. 2d 490, 494–95 (Fla. 1999).

“Not every verdict which raises a judicial eyebrow should shock the judicial conscience.”

Wackenhut Corp. v. Canty, 359 So. 2d 430, 435 (Fla. 1978) (quoting Laskey v. Smith,

239 So. 2d 13, 14 (Fla. 1970)).

       Once on appeal, we review a trial court’s order granting a new trial for an abuse of

discretion. Smith, 525 So. 2d at 870. “If reasonable men could differ as to the propriety




                                               5
       The jury returned a defense verdict. In response, Appellee filed a motion for a new

trial, arguing that the jury’s verdict was against the manifest weight of the evidence. The

trial court ultimately agreed and granted the motion. On appeal, Appellants argue that

the trial court abused its discretion in granting a new trial because the record does not

reflect that Appellants’ expert witnesses testified only generally or that they were less

knowledgeable regarding the hematological intricacies of the case. We agree.

       “When a motion for new trial is made it is directed to the sound, broad discretion

of the trial judge . . . .” Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959) (citations omitted).

“[T]he trial judge can and should grant a new trial if the manifest weight of the evidence

is contrary to the verdict.” Smith v. Brown, 525 So. 2d 868, 870 (Fla. 1988) (citation

omitted). Thus, a trial court should grant a new trial “if the jury has been deceived as to

the force and credibility of the evidence or has been influenced by considerations outside

the record.” Cloud, 110 So. 2d at 673 (citations omitted). “In making this decision, the

trial judge must necessarily consider the credibility of the witnesses along with the weight

of all of the other evidence.” Smith, 525 So. 2d at 870 (citation omitted). Nevertheless,

the trial court may not act as a seventh juror by substituting its verdict for that of the jury,

and “should only intervene when the manifest weight of the evidence dictates such

action.” Id.; see also Brown v. Estate of Stuckey, 749 So. 2d 490, 494–95 (Fla. 1999).

“Not every verdict which raises a judicial eyebrow should shock the judicial conscience.”

Wackenhut Corp. v. Canty, 359 So. 2d 430, 435 (Fla. 1978) (quoting Laskey v. Smith,

239 So. 2d 13, 14 (Fla. 1970)).

       Once on appeal, we review a trial court’s order granting a new trial for an abuse of

discretion. Smith, 525 So. 2d at 870. “If reasonable men could differ as to the propriety




                                               5
of the action taken by the trial court, then the action is not unreasonable and there can be

no finding of an abuse of discretion.” Baptist Mem’l Hosp., Inc. v. Bell, 384 So. 2d 145,

146 (Fla. 1980) (citation omitted). Moreover, “[t]he fact that there may be substantial,

competent evidence in the record to support the jury verdict does not necessarily

demonstrate that the trial judge abused his or her discretion.” Brown, 749 So. 2d at 498.

Indeed, “[t]he trial judge’s discretion permits the grant of a new trial although it is not clear,

obvious, and indisputable that the jury was wrong.” Id. at 497 (internal marks omitted).

        That said, a trial court’s discretion is not unbridled, even in the context of a motion

for new trial. Wackenhut, 359 So. 2d at 434. For instance, it is well-settled that a trial

court abuses its discretion when its reasons for granting a new trial are not supported by

the record. Id. at 435–36. “Consequently, to facilitate intelligent appellate review of such

orders the reasons which produced the need for the new trial must be set forth in the

order.” Id. at 434 (citation omitted); see also Fla. R. Civ. P. 1.530(f); Baptist Mem’l Hosp.,

384 So. 2d at 146.

        Here, the trial court abused its discretion because its reasons for granting a new

trial are not supported by the record. The pertinent portion of the order granting a new

trial states:

                The Court finds that the Plaintiff’s expert witnesses were
                clearly more credible than the Defendants’ expert witnesses.
                Plaintiff’s experts concisely “zeroed in” on the relevant facts
                of the case and applied those facts to the standards of care
                applicable to the health care providers. On the other hand,
                Defendants’ experts gave more general opinions, and were
                not as knowledgeable to the hematological intricacies of the
                case.

We have reviewed the expert testimony at trial and find no support for the trial court’s

conclusion that Appellee’s experts “zeroed in” on the relevant facts of the case any more



                                                6
than Appellants’ experts. Nor did Appellants’ experts give more general opinions or

demonstrate less knowledge of the “hematological intricacies of the case.”

       Although the parties spent considerable time on whether IVIG and prednisone

were administered properly, according to the undisputed record evidence, the case turned

on whether Mr. Staples’ treating physicians should have ordered a platelet transfusion.

Mr. Staples coded and remained in an unresponsive state about twelve and a half hours

after admission to the hospital. The evidence was undisputed that IVIG and prednisone

do not take effect for at least twenty-four hours. Thus, IVIG and prednisone were

irrelevant to the cause of Mr. Staples’ death, and Appellee’s hematologist conceded as

much when he testified that only platelets could have saved Mr. Staples’ life.

       The order granting a new trial is an abuse of discretion as to the nurse who cared

for Mr. Staples because she could not have caused Mr. Staples’ death. While there was

disputed evidence at trial as to whether she met her standard of care in the administration

of IVIG and prednisone, the evidence was undisputed that this could not have caused Mr.

Staples’ death. Moreover, Appellee presented no evidence that the nurse had any

authority to order platelets, let alone that she fell below the standard of care for a nurse

in failing to do so.

       The order granting a new trial is also an abuse of discretion as to Mr. Staples’

treating physicians. On the critical issue of platelets, Appellants’ expert hematologist

testified at length and in significant detail. Contrary to the trial court’s reasons for granting

a new trial, he applied his opinions on the standard of care and causation regarding




                                               7
platelet transfusions directly to Mr. Staples’ condition, and demonstrated a thorough

knowledge of the hematological intricacies of the case.2

       We readily acknowledge that Appellants’ expert hematologist was unable to

answer, based on his memory, some detailed factual questions about the case during

cross-examination. However, counsel’s questions were either unimportant or irrelevant

to the expert’s hematological opinions. While this effort to discredit an expert by testing

his memory regarding factual minutia in the case may be a permissible trial tactic, it does

not demonstrate that an expert lacks knowledge of the “hematological intricacies of the

case.” At most, it demonstrates that Appellants’ expert hematologist did not prepare to

answer questions that were unnecessary to support his proffered opinions.3

       Therefore, we reverse the order granting a new trial with instructions to reinstate

the jury’s verdict.

       REVERSED and REMANDED.


PALMER and EVANDER, JJ., concur.




       2Even if the IVIG and prednisone treatments were relevant to causation here, we
would nevertheless conclude that the trial court abused its discretion because Appellants’
experts did not offer “more general opinions” as to those issues and were not less
knowledgeable in rendering their respective opinions.
       3We note that Appellee’s hematologist was likewise unable to answer some
questions on cross-examination.


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