Appeals Court Delivers Setback to Aspiring Olympian

Oct 9, 2009

A Florida state appeals court has reversed a trial court’s ruling, which had granted a new trial to a potential Olympic athlete, who had claimed that he should be compensated for his potential earnings after an accident cut short his athletic career.
In so ruling, the appeals court found that defense counsel’s comment in his closing statement that cast doubt on the testimony of the plaintiff’s sister about the plaintiff’s earnings capability “were neither highly prejudicial nor inflammatory and did not rise to level requiring a mistrial or new trial.”
Joaquin Bassols believed he was going to make the United States Olympic team when he was cut down in a motor vehicle accident. Bassols sued Community Asphalt Corporation and Alfredo Martinez to recover potential earnings.
During closing arguments, the defense attorney attacked the damages evidence offered through the athlete’s sister about his alleged negotiations with beverage producer Red Bull to have him market the energy drink for $1.4 million. Specifically, the attorney suggested that jurors should expect something more than this testimony from his sister, that they “should expect something” from the beverage producer. Specifically, he suggested that they should “expect” to see a contract.
The jury ultimately found no liability, and Bassols moved for a new trial based upon the comments made in the closing arguments. In its order granting a new trial, the trial court noted that “the defense counsel’s comments created the inference that available witnesses would have testified contrary to the plaintiff, the plaintiff’s sister, and the rest of the family.”
The defendants appealed.
The appeals court examined Bassols’ argument that the comment “violated the rule that when witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness. Haliburton v. State, 561 So.2d 248, 250 (Fla.1990); Lowder v. Econ. Opportunity Family Health Ctr., Inc., 680 So.2d 1133, 1135-36 (Fla. 3d DCA 1996).
“We conclude that the objection was properly overruled. The phrase ‘something from Red Bull’ did not necessarily mean a witness. After the objection was overruled, the next statement from defense counsel was, ‘You should expect a contract.’ This was a permissible argument. A party is allowed to comment on the lack of evidence supporting the opposing party’s position. It was permissible for the defense to point out that Bassols had not produced a contract with Red Bull. Defense counsel next said: ‘you should expect perhaps one of his coaches to come in here. You should expect someone to come in and talk about his true opportunities to make the Olympics, not just Mr. Bassols’ word for it or his sister’s word for it.’”
The appeals court continued, writing that “the comments were neither highly prejudicial nor inflammatory so as to rise to the level of a mistrial. See Murphy v. Int’l Robotic Sys. Inc., 766 So.2d 1010 (Fla.2000); Norman v. Gloria Farms, Inc., 668 So.2d 1016 (Fla. 4th DCA 1996). We therefore reverse the order granting a new trial, and order reinstatement of the jury’s verdict.”
Community Asphalt Corp. v. Joaquin Bassols; D.Ct.App. Fla.; No. 3D07-1317; 7/1/09
Attorneys or Record: (for appellants) Marlow, Connell, Abrams, Adler, Newman & Lewis and Rosemary B. Wilder, Coral Gables. (for appellee) Robert S. Glazier, Miami; Alejandro Alvarez, Miami.


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