Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WILLIAM C. LIVELY, ) ) Appellant, ) ) v. ) Case No. 2D19-1713 ) GOPAL S. GRANDHIGE, M.D.; ) SUNCOAST SURGICAL ASSOCIATES, ) P.A.; and ST. JOSEPH'S HOSPITAL, ) INC. d/b/a ST. JOSEPH'S HOSPITAL- ) SOUTH, ) ) Appellees. ) ) Opinion filed March 17, 2021. Appeal from the Circuit Court for Hillsborough County; Rex M. Barbas, Judge. Stuart C. Markman, Kristin A. Norse, and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa, for Appellant. Dinah S. Stein and Aneta A. Kozub of Hicks, Porter, Ebenfeld & Stein, P.A., Miami; and Ronald H. Josepher and Edwin P. Gale of Josepher & Batteese, P.A., Tampa, for Appellees Gopal S. Grandhige, M.D., and Suncoast Surgical Associates, P.A. Jason M. Azzarone of La Cava & Jacobson, P.A., Tampa, for Appellee St. Joseph's Hospital, Inc., d/b/a St. Joseph's Hospital-South. SMITH, Judge. William C. Lively appeals the order denying his motion for new trial following a final judgment rendered in favor of Gopal S. Grandhige, M.D., Suncoast Surgical Associates, P.A., and St. Joseph's Hospital, Inc. d/b/a St. Joseph's Hospital- South (St. Joseph's) in this medical malpractice case. Because the trial court's oral pronouncement, incorporated into the order denying the motion for new trial, does not reflect that the trial court applied the correct legal standard, we reverse and remand with instructions. After the jury returned a verdict in favor of Dr. Grandhige and Suncoast Surgical Associates on Mr. Lively's medical negligence suit,1 Mr. Lively timely moved for a new trial arguing that the verdict was against the manifest weight of the evidence and that a new trial was required to avoid a miscarriage of justice. Dr. Grandhige, Suncoast Surgical Associates, and St. Joseph's opposed the motion for new trial arguing there was overwhelming competent, substantial evidence supporting the jury's verdict. At the hearing and after hearing legal argument from both sides, the trial court announced its ruling in open court, making both factual findings2 and legal conclusions: 1Mr. Lively's complaint sought to hold St. Joseph's vicariously liable based on various agency theories. Because the jury found no negligence on the part of Dr. Grandhige, it never reached the vicarious liability issues. However, because Mr. Lively's motion for new trial sought a new trial on all claims, including those against St. Joseph's, St. Joseph's appeared below in opposition to the motion for new trial and is a party to this appeal. 2We leave undisturbed the trial court's factual findings made at the hearing, as none of the parties has made any argument related thereto on appeal. Notwithstanding, our decision here is without prejudice to the trial court to enter a new written order on remand setting forth its factual findings and conclusions of law consistent with this opinion. -2- I'm going to make a ruling, but I want to make some factual findings along with it, which is very unusual in this type of setting: But because of the testimony and because of the type of evidence which is not allowed in the State of Florida, i.e., no longer Daubert but Frye, I believe that I cannot overrule the jury. So the motion for a new trial is denied; however, I am making a specific finding that I did not find the testimony of Dr. [Albrink] . . . credible. I found it contrary to the physical evidence which was required in order to prove the case. That if this was under a Daubert standard, I believe that I would have the authority to overrule him and grant a new trial, but because he has rendered an opinion, which the jury has accepted, I find that I cannot. An order was subsequently rendered denying the motion for new trial referencing the trial court's findings announced at the hearing and attaching the transcript of the hearing. The parties disagree as to whether the trial court applied the correct legal standard in ruling on the motion for new trial, providing two differing interpretations of the trial court's reference to Daubert and Frye.3 Compare Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) ("[T]he trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."), with Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (requiring the scientific principles or discovery supporting an expert's opinion to be "sufficiently established to have gained general acceptance in the particular field in which it belongs"). One view is, as Mr. Lively argues, that the trial court applied the test in Frye when ruling on the motion for new trial, which he argues was error. Dr. Grandhige, Suncoast Surgical Associates, and St. Joseph's, on the other hand, suggest that the trial court's comment about the Frye test was merely commentary that has no legal 3Despite the lack of clarity in the trial court's ruling, neither party sought rehearing or clarification, and if they had this matter would likely not be before us now. -3- effect on the ruling. Generally, we review the denial of motion for new trial under the abuse of discretion standard; however, where the issue is whether the trial court employed the proper standard when ruling on the motion for new trial, a de novo standard of review is employed. See Franklin v. State, 286 So. 3d 962, 965 (Fla. 1st DCA 2020); see also Meyers v. Shontz, 251 So. 3d 992, 999 (Fla. 2d DCA 2018) ("If the trial court's order is based on an error of law, however, we do not afford it . . . deference because the trial court's ability to consider and resolve legal issues is not superior to our own." (citing Van v. Schmidt, 122 So. 3d 243, 258 (Fla. 2013))). In ruling on a motion for new trial, a trial court is required to determine whether the verdict was against the manifest weight of the evidence. Id. "[A] trial court is not required to defer to the jury's weighing of conflicting testimony in considering the motion. Rather, in making its decision, the trial court 'must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence.' " Van, 122 So. 3d at 260 (quoting Brown v. Estate of Stuckey, 749 So. 2d 490, 497 (Fla. 1999)). "[A] trial court is not compelled to use 'magic words' when ruling on a motion for new trial, but the ruling should demonstrate that the proper standard was applied to the motion." Geibel v. State, 817 So. 2d 1042, 1045 (Fla. 2d DCA 2002). Where the record clearly establishes that the trial court applied the appropriate legal standard, a trial court's ruling on a motion for new trial will not be disturbed. See Franklin, 286 So. 3d at 965; Nolan v. State, 277 So. 3d 1147, 1149 (Fla. 1st DCA 2019) (noting the record was clear that trial court's statements were directed to prior rulings and nothing indicated the trial court applied the wrong standard); Moreland v. State, 253 -4- So. 3d 1245, 1247 (Fla. 1st DCA 2018) (explaining the trial court did not apply wrong standard where trial court made rulings on various motions but simply denied the motion for new trial without comment); Bell v. State, 248 So. 3d 208, 210 (Fla. 1st DCA 2018) (concluding nothing in record indicated that trial judge applied wrong standard when the oral ruling only addressed one standard of the multiground motion for new trial). However, where the trial court's ruling is less than clear as to whether the proper legal standard was applied, reversal is required so that the matter may be remanded for the trial court to consider the motion based upon the proper legal standard. See, e.g., Collett v. State, 28 So. 3d 224, 226 (Fla. 2d DCA 2010) ("[W]e are unable to ascertain, as a matter of law, whether the trial court utilized the improper standard as is suggested by the language used in its order, or merely used improper wording while actually applying the correct standard."); Ferebee v. State, 967 So. 2d 1071, 1073 (Fla. 2d DCA 2007) (reversing and remanding for trial court to consider motion for new trial under the correct standard where the trial court's statements that it could not "act as a seventh juror" and finding "sufficient facts for the jury to make a determination" of guilt reveal that the trial court did not apply the appropriate weight of the evidence standard); Baker v. State, 262 So. 3d 241, 242 (Fla. 1st DCA 2018) (explaining that the trial court's reference to its prior rulings on motions for judgment of acquittal as the sole reason for denying the motion for new trial show the trial court failed to apply the correct standard of whether the verdicts were against the weight of the evidence). In this case, the trial court's debated oral pronouncement falls more in line with the facts in the latter cases—Collett, Ferebee, and Baker. Here, the motion for new -5- trial was based upon grounds that the verdict was against the manifest weight of the evidence. It was the trial court, and not the parties, who brought up Frye and Daubert at the hearing and discussed the same in its ruling. And while the trial court expressly found the defense's main expert witness was not credible, and indeed found his testimony to be "contrary to the physical evidence which was required in order to prove the case," the trial court made no finding as to whether the verdict was against the manifest weight of the evidence. Because the order does not reflect that the trial court applied the correct legal standard—whether the verdict was against the manifest weight of the evidence— we reverse and remand with instructions for the trial court to consider and enter a ruling on the motion for new trial applying the proper legal standard consistent with Meyers. See Meyers, 251 So. 3d 992. Reversed and remanded with instructions. LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur. -6-