       Third District Court of Appeal
                               State of Florida

                         Opinion filed November 4, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-989
                         Lower Tribunal No. 10-53225
                             ________________


                             Anthony Maniglia,
                                    Appellant,

                                        vs.

                              Daniel Carpenter,
                                    Appellee.


      An appeal from the Circuit Court for Miami Dade County, Sara I. Zabel,
Judge.

     Kubicki Draper and Caryn L. Bellus and Bretton C. Albrecht, for appellant.

      David B. Pakula (Southwest Ranches); Ellis, Ged & Bodden (Boca Raton),
for appellee.


Before WELLS, SALTER and FERNANDEZ, JJ.

     SALTER, J.
         Anthony Maniglia appeals a final judgment awarding damages to Daniel

Carpenter following a September 2009 automobile collision. Maniglia seeks a

reversal and remand for a new trial based on the trial court’s exclusion of evidence

relating to an incident involving Carpenter that occurred a month after the

accident.      We conclude that the proffered evidence of the incident was

significantly probative and outweighed any alleged prejudice. Applying the test

for harmless error in a civil case, see Special v. W. Boca Med. Ctr., 160 So. 3d

1251 (Fla. 2014), we conclude that Carpenter has failed to prove that the error did

not contribute to the verdict in his favor. We thus reverse and remand for a new

trial.

         The Accident and Aftermath

         In September 2009, automobiles driven by Maniglia and Carpenter collided

while Maniglia was changing lanes on I-95 at night. The collision damaged the

right rear area of Maniglia’s vehicle and the left front of Carpenter’s auto.

Maniglia and his brother (a passenger in Maniglia’s vehicle) maintained that it was

only a bump; Carpenter maintained that it was a severe sideswiping.

         The day after the accident Carpenter visited Dr. Napoli, a chiropractor, and

complained about right-side neck and back pain. Dr. Napoli later testified that x-

rays taken that day showed no signs of acute injury, that they revealed disc




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narrowing (which he described as “normal wear and tear”), and that he placed no

work restrictions on Carpenter.

       The Golf Cart Incident

       In pretrial discovery in his personal injury suit against Maniglia, Carpenter

initially denied that he had been involved in any subsequent accidents. Later

investigation revealed, however, that Carpenter was involved in an unrelated

accident and physical altercation less than a month after the car accident involving

Maniglia. In October 2009, Carpenter was playing in a golf tournament. In the

course of the tournament, Carpenter drove a golf cart onto a public road, ran a red

light, and collided with a car. At impact, Carpenter fell from the golf cart and onto

the street.

       Carpenter got into a physical altercation with the police at the scene, which

included fighting, kicking, and wrestling on the ground. There was evidence that

Carpenter was intoxicated; that he did not have permission to use the golf cart; that

he yelled profanity at the police and kicked both feet against the rear passenger

window of the police car; and that he was arrested on the scene for battery on a law

enforcement officer.

       Additional evidence proffered by Maniglia at trial would have shown that

Carpenter failed to disclose the golf cart incident and altercation to Dr. Napoli

when he returned to Dr. Napoli less than two weeks later. Maniglia also proffered



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evidence that the magnetic resonance images (MRIs) of Carpenter, relied upon by

Carpenter’s surgeon when he recommended surgery, were not taken until after the

golf cart incident.

      The Motion in Limine and the Evidence at Trial

      Carpenter moved before trial to exclude all evidence relating to the October

2009 golf cart incident on the grounds that its prejudicial effect substantially

outweighed its probative value under section 90.403, Florida Statutes (2015).

Carpenter argued that irrelevant, but highly prejudicial facts—such as the

intoxication, profanity, and struggle with law enforcement personnel—were too

interwoven with any facts relating to the golf cart collision and Carpenter’s fall

from the cart to the pavement to permit a “sanitized version” to be allowed. The

trial court granted the motion.

      At trial, however, the court allowed the jury to hear that Carpenter played in

the golf tournament less than a month after the accident with Maniglia, and that

Carpenter had played “bumper cars” with the golf cart at the first tee. The court

also allowed limited evidence that Carpenter was intoxicated at the golf

tournament, which Carpenter had relied on to explain his ability to play golf

following his alleged injuries.

      The jury did not hear the complete details of the golf cart incident, however,

including Carpenter’s crash with an automobile, fall onto the pavement, and



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struggle with law enforcement personnel. The jury also did not hear proffered

evidence that Carpenter failed to tell his chiropractor, Dr. Napoli, about the golf

cart incident and struggle when Carpenter visited him less than two weeks after

those events occurred.

      The jury returned a verdict awarding Carpenter $182,429.39. The court

entered a final judgment in the case. Maniglia’s motion for a new trial was denied,

and this appeal followed.

      Analysis

      We have described the admissibility of “prejudicial” facts in these terms:

      “[m]ost evidence that is admitted will be prejudicial or damaging to
      the party against whom it is offered.” Charles W. Ehrhardt, [Florida
      Evidence § 403.1 (2007)] at 183. The question under the statute is not
      prejudice but instead, unfair prejudice: whether the “probative value is
      substantially outweighed by the danger of unfair prejudice.” § 90.403,
      Fla. Stat. (2005) (emphasis added).

State v. Williams, 992 So. 2d 330, 334 (Fla. 3d DCA 2008).

      In the present case, the golf cart incident included facts that addressed both

Carpenter’s credibility and his proof of causation. The possibility of “unfair”

prejudice did not “substantially” outweigh the probative value of that evidence.

Had the motion been denied and the proffered evidence introduced, Carpenter’s

failure to mention the recent golf cart incident to his chiropractor may have

affected the jury’s evaluation of Carpenter’s credibility, and the particulars of his

fall and struggle with police would have been an adequate basis for jury


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instructions on intervening causes and subsequent injuries. See Fla. Std. Jury Instr.

(Civil) 401.12(c), 505.5(b).

      As the beneficiary of this erroneous exclusion of admissible evidence,

Carpenter is required “to prove that the error complained of did not contribute to

the verdict,” alternatively described by the Supreme Court of Florida as proof that

“there is no reasonable possibility that the error complained of contributed to the

verdict.” Special, 160 So. 3d at 1265. Carpenter and the record before us have not

satisfied this requirement, with the result that the final judgment and order denying

new trial must be reversed.

      Reversed and remanded for a new trial.




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