Full Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT NORMA I. VELEZ RIVERA, Appellant, v. LEIDIMAR C. LOPES, Appellee. No. 4D2025-0675 [September 2, 2026] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; David Alan Haimes, Judge; L.T. Case No. 062023CA005659AXXXCE. Mason Kerns of Mason Kerns Law, P.A., Coral Gables, for appellant. Sara Sandler Cromer of Walton Lantaff Schroeder & Carson LLP, Port St. Lucie, and John P. Joy of Walton Lantaff Schroeder & Carson LLP, Fort Lauderdale, for appellee. LOTT, J. If a tree falls in a forest, and no one is around to hear it, does it make a sound? If evidence exists, but is not admissible under the rules of evidence, does it really exist at all—at least for the purposes of trial? We’ll leave the reader to ponder the first question. But the answer to the second is essentially, “no, it does not exist.” That’s the point of exclusionary rules: to prevent the jury from considering evidence deemed unreliable or otherwise unworthy of the jury’s consideration. See United States v. Scheffer, 523 U.S. 303, 309 (1998) (“State and Federal Governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact . . . [and] the exclusion of unreliable evidence is a principal objective of many evidentiary rules.”). For purposes of the jury’s deliberations, the evidence does not exist. Id. (holding that a party’s right to present relevant evidence may “bow to accommodate other legitimate interests,” such as “ensuring that only reliable evidence is introduced at trial”). Here, Appellee (properly) sought to have a statement excluded because it was inadmissible hearsay. Appellee then argued to the jury that the statement was never made. Appellant claims error, arguing that the Appellee’s statement was false and misleading because the statement was in fact made—the only reason the jury couldn’t hear it was because Appellee (properly) sought to have it excluded as inadmissible hearsay. With the benefit of oral argument, we find no prejudicial error and affirm. The evidence was (properly) excluded from the jury, and so for the purposes of the jury’s consideration, the evidence did not exist. To the extent Appellee’s phrasing was false or misleading, any error was harmless and does not demand a new trial. 1 I. Background A. The Collision, Claims, and Trial This case concerns a personal injury suit arising from a motor vehicle accident. Appellant, Velez Rivera, was plaintiff below. Appellee, Lopes, was defendant below. Among the disputed issues was whether Appellant suffered a “permanent injury within a reasonable degree of medical probability,” which would allow Appellant to recover noneconomic damages. See § 627.737(2)(b), Fla. Stat. (2023). On February 19, 2023, a vehicle driven by Appellee collided with a vehicle driven by Hector Manuel Santana on a roadway behind a strip mall. Appellant was a passenger in Santana’s vehicle. Appellant sued Appellee for negligence, and Appellee identified Santana as a nonparty at fault. The case proceeded to a jury trial on liability, causation, permanency, and damages. B. The Family Medical Group Permanency Evidence After the accident, Appellant was transported to a hospital and released several hours later. She then received therapy at Family Medical Group, where she was seen twenty-six times and last treated on April 11, 2023. 1 We affirm without discussion on all other issues raised in this appeal. 2 In June 2024, Appellant began treatment at Dynamic Orthopedic Center, and she underwent cervical surgery on August 30, 2024. Appellant’s treating spine surgeon, Dr. Robert Getter, testified that the collision caused her herniated disc and her injuries were permanent. The defense presented contrary testimony from: (1) radiologist Dr. Paul Koenigsberg, who found preexisting degenerative changes and no objective evidence of cervical-spine damage caused by the collision, and (2) orthopedic surgeon Dr. Steven Jacobs, who opined that the collision caused, at most, a cervical sprain or strain and no permanent cervical injury. Before trial, Appellee moved to redact portions of Family Medical Group’s April 11, 2023 final evaluation, including a notation assigning Appellant a four-percent permanent whole-body impairment rating. Appellee argued that the statement was inadmissible hearsay. Appellant did not argue below—and does not argue on appeal—that the statement was admissible (i.e., that it was not inadmissible hearsay). E.g., Appellant’s Initial Brief at 45, Velez Rivera v. Lopes, No. 4D2025-0675 (Fla. 4th DCA Sept. 14, 2025) (“Velez’ quarrel is not with the evidentiary exclusion . . . .”). The trial court accordingly excluded that portion of the record and redacted it from the jury’s view. 2 The redacted final evaluation admitted into evidence nevertheless stated that further functional improvement was not reasonably anticipated and that maintenance care had been offered. C. Closing Argument, the Offered Curative, and the Verdict During closing argument, Appellee first argued that “there is no one that ever rendered an opinion from [Family Medical Group] that she had a permanent injury.” Counsel later argued that the Family Medical Group record “does not show any permanent impairment” and asked the jury to examine the medical records if it was considering a finding of permanency. Appellant objected, arguing that the excluded notation reflected a permanent impairment. The court offered a curative instruction, but Appellant rejected it as inadequate and sought to reopen the evidence to show the jury the unredacted record. The court denied that request and allowed the jury to deliberate. 2As noted above, Appellant offered evidence from other providers and expert witnesses that she suffered a permanent injury. 3 After the court denied Appellant’s requests to reopen the evidence and for a mistrial, Appellant argued in rebuttal that the admitted Family Medical Group records showed that no further functional improvement was expected and that maintenance care had been offered. The jury found that the negligence of both Appellee and Santana legally caused Appellant’s loss, injury, or damage, apportioned fault sixty-five percent to Appellee and thirty-five percent to Santana, and awarded Appellant $70,040.80 in past medical expenses. The jury did not find that Appellant sustained a permanent injury from the collision. D. Post-Trial Proceedings and Final Judgment Appellee moved to reduce the verdict to a net amount, and Appellant moved for a new trial. The court denied Appellant’s motion for new trial, concluding, in relevant part, that the closing argument did not require relief. The court granted Appellee’s motion to reduce the verdict and entered final judgment for Appellant in the amount of $10,834.34. Appellant timely appealed. II. Analysis A. Legal Standard We review the denial of a motion for mistrial and a motion for new trial based on allegedly improper closing argument for an abuse of discretion. Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1271 (Fla. 2006); see Hulick v. Beers, 7 So. 3d 1153, 1155 (Fla. 4th DCA 2009). The beneficiary of a preserved error bears the burden to establish no reasonable possibility exists that the error contributed to the verdict. Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014). “The purpose of closing argument is to help the jury understand the issues by applying the evidence to the law applicable to the case.” Hill v. State, 515 So. 2d 176, 178 (Fla. 1987). While counsel may “review the evidence and fairly discuss and comment upon properly admitted testimony and logical inferences from that evidence,” “they must confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.” King v. State, 130 So. 3d 676, 687 (Fla. 2013) (citation omitted); Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000) (quoting Knoizen v. Bruegger, 713 So. 2d 1071, 1072 (Fla. 5th DCA 1998)); see also R. Regulating Fla. Bar 4- 4 3.4(e) (2026) (“A lawyer must not . . . [in trial,] allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence . . . .”). Of course, “it is proper for a [party] in closing argument to refer to the evidence as it exists before the jury and to point out that there is an absence of evidence on a certain issue.” White v. State, 377 So. 2d 1149, 1150 (Fla. 1979) (citing State v. Jones, 204 So. 2d 515 (Fla. 1967); State v. Mathis, 278 So. 2d 280 (Fla. 1973)). B. No error in drawing attention to the absence of properly excluded evidence On appeal, Appellant argues that it was error to allow Appellee to successfully exclude evidence of Family Medical Group’s finding of a permanent injury and then argue that Family Medical Group did not find a permanent injury. This argument primarily stems from dicta in the Third District’s decision in Hernandez v. Home Depot U.S.A., Inc., 695 So. 2d 484 (Fla. 3d DCA 1997). The court found that the trial court had abused its discretion in excluding testimony of the plaintiff’s expert. The court went on to say that “the error was unfairly exacerbated and compounded when, in final argument, defense counsel, who had succeeded in excluding this available and proffered evidence of his client’s negligence, then—in what must be the ultimate gotchaism—whipsawed the plaintiff for not producing that very testimony.” Id. at 485. The court suggested that it previously had called such an argument “disingenuous” and “misleading.” Id. (quoting Bauta v. State, 698 So. 2d 860, 864 (Fla. 3d DCA 1997)). We cited this dictum in a related posture in JVA Enters., I, LLC v. Prentice, 48 So. 3d 109 (Fla. 4th DCA 2010). There, we found that the trial court erred in excluding evidence and “[t]he prejudice to the defendants by the trial court’s exclusion of this evidence was compounded when in final argument the plaintiff’s counsel, who had succeeded in excluding this evidence,” drew attention to its absence. Id. at 115. We cited Hernandez and its progeny for the proposition that “[c]ase law indicates it is improper for a lawyer, who has successfully excluded evidence, to seek an advantage before the jury because the evidence was not presented.” Id. This line of authority, however, is very different from the case at hand today because in those cases, the trial courts had improperly excluded evidence, and then counsel compounded the error by drawing attention to 5 its absence. 3 We have not held that it is improper to draw attention to the absence of properly excluded evidence. Such a rule would relegate properly excluded evidence to a nether- realm in which it is not admitted into the trial, but neither can its absence be acknowledged. Neither present nor absent: Schrödinger’s hearsay. 4 Indeed, the reason why we have rules of evidence requiring that certain evidence be excluded is to keep that evidence out of the jury’s knowledge. “[T]he exclusion of unreliable evidence is a principal objective of many evidentiary rules.” Scheffer, 523 U.S. at 309; accord 1 Robert P. Mosteller et al., McCormick on Evidence § 10 (9th ed. 2025) (“The common law system of evidence embodies a strong preference for admitting the most reliable sources of information. This preference is reflected in the hearsay rule, the documentary original doctrine, and the opinion rule.”). The remaining cases which Appellant cites are also distinguishable. In Reid v. State, 784 So. 2d 605, 606 (Fla. 5th DCA 2001), the trial court improperly excluded the defendant’s self-serving hearsay that he made exculpatory statements on the day of his arrest before surrendering himself. The prosecution drew attention to the fact that as he surrendered himself, he did not make any exculpatory statements. This case accordingly raised a “door-opening” problem, which is not present in this case. Cf. 1 Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 104.1 (2026 ed.) (“The introduction of evidence by one party may open the door to evidence being admissible when offered by the opposing party when the evidence is necessary to qualify, explain, or limit testimony or evidence previously admitted.”). Here, Appellee did not “open the door” to Family Medical Group’s opinion regarding permanency by drawing attention to Appellant’s failure to set out evidence of that fact in an admissible form. 3 Accord, e.g., Rierson v. Deveau, 273 So. 3d 1041, 1043 (Fla. 3d DCA 2019) (counsel violated order in limine properly precluding reference to existence of citation by commenting on officer’s lack of testimony regarding fault or citation); State Farm Mut. Auto. Ins. Co. v. Thorne, 110 So. 3d 66, 73 (Fla. 2d DCA 2013) (finding error in excluding several arguments, which error was compounded and made prejudicial by comments in closing argument). 4 Cf., e.g., Allaire v. Allaire, 371 So. 3d 992, 995 n.1 (Fla. 2d DCA 2023) (“In a famous gedanken experiment of quantum mechanics, Schrödinger’s cat remains suspended between life and death in a box, neither alive nor dead until the box is opened and uncertainty about the decay of a radioactive particle is resolved. Schrödinger’s cat is a symbol of something that exists in two contradictory states at the same time.” (cleaned up)). 6 In Bauta, the trial court excluded a child hearsay statement taken by the lead detective in the case, which prompted the State not to call the lead detective as a witness. 698 So. 2d at 863. During closing argument, defense counsel commented on the State’s decision not to call the lead detective by asking the jury: “Do you think that’s because he had favorable evidence to present for the State?” Id. The trial court sustained the State’s objection. Id. The Third District affirmed, holding defense counsel’s argument misled the jury as to both the State’s motivation for failing to call the witness and the content of the witness’s testimony. Id. at 864. In other words, Bauta dealt with a misleading reason for opposing counsel’s lack of evidence—not just whether evidence existed in the record. Here, counsel argued that evidence that was not admitted did not exist. The jury was not misled, because indeed no evidence existed that they could legally consider. In Carnival Corp. v. Pajares, 972 So. 2d 973 (Fla. 3d DCA 2007), the trial court granted the plaintiff’s motion in limine to preclude Carnival’s medical director from testifying as to the standard of care, because Carnival had failed to disclose the medical director as an expert witness as required by the pre-trial order. Id. at 975–76. During closings, the plaintiff’s counsel implied the medical director had failed to testify regarding the standard of care because he had no favorable testimony to provide. Id. at 976. The Third District found such comments were improper. Id. We need not pass on whether our opinion today accords with that aspect of Pajares, because Pajares did not hold that such an error, standing alone, was sufficiently prejudicial to merit a new trial. Cf. id. at 979 (“While we recognize that a single improper remark or argument might not be so prejudicial as to require reversal, we conclude that the cumulative prejudicial effect of the improper comments noted herein requires a new trial[.]”). Finally, we note that the rule which Appellant suggests presents a line- drawing problem. The line where inadmissible evidence “exists” and so cannot be suggested to be absent cannot be easily differentiated from the line where such evidence does not exist but is nonetheless legally non- existent for purposes of what the jury may consider. Indeed, the fuzziness of such differentiation driven by competing facts and legal considerations in a universe of disparate cases defies the existence of any line itself. Suppose a prosecutor in a murder case proffers evidence of a murder. Person A will testify that they heard Person B say he witnessed the murder and the defendant was the killer. Person B has disappeared. The trial judge properly sustains a hearsay objection to Person A’s testimony about 7 what Person B had said. Could defense counsel argue no one had witnessed the murder? What about if the hearsay stretches to double hearsay—Person A will testify they heard Person B (since disappeared) say that Person C (also since disappeared) witnessed the defendant commit the murder. At what point could the defendant be sufficiently confident of arguing no one had witnessed the murder, without forfeiting his proper hearsay objection? The proper place to draw the line is exactly where the rules of evidence tell us to. If the prosecutor cannot produce admissible evidence of an eyewitness to the murder, then defense counsel may argue no one had witnessed the murder. Here, likewise, if Appellant could not produce admissible evidence of Family Medical Group’s finding of a permanent injury, then Appellee may argue Appellant did not possess any finding of a permanent injury that could be presented to the jury. C. Any phrasing error was harmless To be sure, we do not entirely condone Appellee’s closing argument statements. Appellee’s counsel stated: “In Family Medical there is no one that ever rendered an opinion from that facility that she had a permanent injury.” That statement was objectively not true. Someone did in fact render such an opinion, but it was excluded as hearsay. But that brings us back to the earlier thought exercises and line- drawing problems—if it were instead excluded because it was unreliable, would the opinion have been rendered in truth? We nonetheless think the better practice in similar circumstances would be to phrase the argument accurately where the truth is not reasonably disputed. “You did not hear any evidence that anyone from Family Medical ever rendered an opinion that she had a permanent injury” would convey substantially the same message in a factually accurate manner. Although counsel was free to argue that the jury heard no admissible evidence that anyone at Family Medical had rendered an opinion of permanent injury, counsel’s categorical assertion that no one had ever rendered such an opinion was objectively untrue and therefore improper. 8 Nevertheless, under the circumstances presented, the improper statement was harmless. See Special, 160 So. 3d at 1256–57 (recognizing harmless error in civil cases). The core message was the same: Appellant did not introduce any permanency finding from Family Medical into evidence, and all the jury is allowed to consider is properly admitted evidence. Absent other errors, no reasonable possibility exists that such imprecision in the heat and stress of closing argument, standing alone, contributed to the verdict. Cf. Pajares, 972 So. 2d at 979 (recognizing “that a single improper remark or argument might not be so prejudicial as to require reversal,” but finding the multitude of errors cumulatively warranted a new trial). Moreover, Appellant did not request any curative instruction to mitigate any phrasing error (and indeed rejected the opportunity for one), thereby waiving the claim of error. Cf. Giangrasso v. State, 793 So. 2d 71, 73 n.1 (Fla. 4th DCA 2001) (failure to object to the curative procedure proposed by the court waived any challenge to it). We lastly note that the trial court also acted well within its discretion in refusing to reopen the evidence. See Loftis v. Loftis, 208 So. 3d 824, 826 (Fla. 5th DCA 2017). Appellant did not identify newly available admissible evidence. She merely sought to place before the jury the same impairment opinion which the court had already (properly) excluded. See § 90.802, Fla. Stat. (2024). Reopening the evidence would not have corrected the phrasing of closing argument—it would have admitted material that remained inadmissible. See id.; cf. Loftis, 208 So. 3d at 826 (“The primary considerations in granting or denying a motion to reopen are whether reopening the case would unduly prejudice the opposing party and whether it will serve the best interests of justice.” (cleaned up)). III. Conclusion Because the trial court did not abuse its discretion in denying the requested relief, and because any imprecision in defense counsel’s closing argument was harmless, we affirm the final judgment. Affirmed. SHEPHERD, J., and COATES, JR., HOWARD K., Associate Judge, concur. * * * NOT FINAL UNTIL DISPOSITION OF TIMELY-FILED MOTION FOR REHEARING. 9