Birch ex rel. Birch v. Albert

• Decision Date: 22 March 2000
• Docket Number: No. 3D98-416.,3D98-416.
• Citation: 761 So.2d 355
• Parties: Douglas BIRCH, a minor, by and through his next friend, parent and natural guardian, Donna BIRCH and Donna Birch, individually and Basil Birch, individually, Appellants, v. Miguel A. ALBERT, M.D. and Appellees.
• Court: Florida District Court of Appeals

761 So.2d 355

Douglas BIRCH, a minor, by and through his next friend, parent and natural guardian, Donna BIRCH and Donna Birch, individually and Basil Birch, individually, Appellants, v. Miguel A. ALBERT, M.D. and Appellees.

No. 3D98-416.

District Court of Appeal of Florida, Third District.

March 22, 2000.

Rehearing Denied July 12, 2000.

Robert J. Dickman, Coral Gables; Hersch & Talisman, and Patrice A. Talisman, Miami, for appellants.

Baron and Cliff, and Richard Baron, and Nancy J. Cliff, Miami, for appellees.

Before GERSTEN, FLETCHER, and SORONDO, JJ.

GERSTEN, J.

Plaintiffs appeal an order granting a new trial in favor of the defendants in a medical malpractice action based upon juror non-disclosure. The defendants cross appeal claiming a new trial is required because a jury instruction was misleading and based upon improper comments during closing argument. We reverse on the main appeal finding that a new trial is not warranted because the juror's failure to disclose a previously dismissed collection action was not material, and because the failure to disclose was due to the defendant's lack of diligence. The cross appeal is affirmed.

Basil Birch, his wife, Donna, and son Douglas (hereafter collectively referred to as "plaintiffs"), sued Dr. Miguel A. Albert, his professional association, (hereafter collectively referred to as "defendant"), and Hialeah Hospital for medical malpractice asserting that Douglas was born with cerebral palsy as a direct result of birth trauma caused by the defendant's negligence.¹ After a six day trial in September of 1998, the jury returned a verdict in favor of the plaintiffs. Douglas was awarded $4,174,000 for past and future medical expenses, $1,750,000 for future wage loss, and $10,000,000 for past and future pain and suffering, Donna and Basil received $1,500,000 each for past and future loss of their son's companionship and society. The total award against the defendant was $18,924,000.

After the verdict was returned, the defendant moved for new trial on several grounds, including the claim that one or more of the jurors had misrepresented and/or denied involvement in prior legal proceedings. The only evidence presented to support this assertion was the fact that in February of 1997, juror Maria Ferrer-Young ("Ferrer-Young") had been sued in county court for non-payment of a $1,000 anesthesiologist bill.²

Since this information was not disclosed during voir dire, the trial judge held that she was constrained by this Court's decision in Wilcox v. Dulcom, 690 So.2d 1365 (Fla. 3d DCA 1997) to grant a new trial on the ground of juror misconduct.³ The trial judge explained that, but for Wilcox, she would have denied the motion because the non-disclosure did not deprive the defendants of a fair and impartial trial.⁴

In Wilcox, this Court applied the well-established "three part test" in finding that a juror's concealment of information during voir dire warranted a new trial. See Wilcox v. Dulcom, 690 So.2d at 1366

. The three part test requires a showing that: (1) the information is relevant and material, (2) the juror concealed the information during questioning, and (3) the jurors failure to disclose the information was not attributable to lack of due diligence on the part of the complaining party. See De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995); Mazzouccolo v. Gardner, McLain & Perlman, M.D., P.A., 714 So.2d 534 (Fla 4th DCA 1998).

After reviewing the voir dire proceedings in the instant case, we conclude the three part test was not met because Ferrer-Young did not conceal material information and the defendants were not diligent. For reasons discussed in further detail below, we clarify and distinguish Wilcox from the facts of this case.

During voir dire, the trial court initially addressed scheduling issues and asked each potential juror if they had any close relatives who were doctors or otherwise worked in the medical field. Potential juror Ferrer-Young stated she might have a scheduling problem with an important doctor's appointment later in the week, and disclosed that her grandfather had been a cardiologist.

The trial court then questioned the potential jurors as to whether they had ever been a party to a lawsuit. During the questioning of two potential jurors prior to Ferrer-Young, the trial court described the litigation history it sought as "like arising out of a car accident or anything like that."⁵ All the potential jurors responded only by mentioning personal injury suits and a dissolution/custody action.

When Ferrer-Young was asked if she had been a party to a lawsuit, she responded that she had been injured in a workers' compensation case, but that "it was not a suit." The trial judge immediately followed-up by confirming that Ferrer-Young was the "injured party" and sought an explanation of her injuries. No explanation of "lawsuit" was given at that time.⁶ Ferrer-Young was never asked by the court, plaintiffs or defendants whether she had any other experience with lawsuits. Moreover, the trial court had earlier limited this inquiry with another juror by explaining it was looking for lawsuits "like arising out of a car accident or anything like that."

Information is considered concealed for purposes of the three part test where the information is "squarely asked for" and not provided. See Mazzouccolo v. Gardner, McLain & Perlman, M.D., P.A., 714 So.2d at 536; Bernal v. Lipp, 580 So.2d 315, 316 (Fla. 3d DCA 1991); see also Mitchell v. State, 458 So.2d 819 (Fla. 1st DCA 1984)

(in order for a juror to be held to have concealed information, the question propounded must be straight-forward and not reasonably susceptible to misinterpretation). Here, Ferrer-Young squarely answered the asked questions and there was no follow-up inquiry requesting information on her entire litigation history.

The fact that the defendants did not follow up on the information Ferrer-Young provided is significant for two reasons. First, because a juror's answer cannot constitute concealment, where the juror's response to a question about litigation history is ambiguous, and counsel does not inquire further to clarify that ambiguity.⁷ See Taylor v. Public Health Trust of Dade County, 546 So.2d 733 (Fla. 3d DCA),

review denied, 557 So.2d 867 (Fla.1989); State v. McGough, 536 So.2d 1187 (Fla. 2d DCA 1989).

And second, because defense counsel did not diligently discover this information. Given ample opportunity to do so, defense counsel failed to inquire further about Ferrer-Young's litigation history, or follow-up on her responses about the workers' compensation claim.⁸ Therefore, any failure to disclose additional prior legal proceedings was due to the defendant's lack of due diligence and thus cannot constitute active concealment on the part of the juror. See State v. McGough, 536 So.2d at 1189

; Blaylock v. State, 537 So.2d 1103 (Fla. 3d DCA 1988),

review denied, 547 So.2d 1209 (Fla.1989); Schofield v. Carnival Cruise Lines, Inc., 461 So.2d 152 (Fla. 3d DCA 1984),

review denied, 472 So.2d 1182 (Fla.1985).

Finally, here, we conclude that the materiality prong of the three part test has not been met. The test is not simply whether information is relevant and material in general, but whether it is "relevant and material to jury service in the case." De La Rosa v. Zequeira, 659 So.2d at 241(emphasis added).⁹ Materiality must be analyzed on a case-by-case basis, and we clarify that Wilcox does not mandate an automatic new trial whenever there has been a nondisclosure of litigation information. Based upon the facts and circumstances of this case, we find the prior lawsuit was not material. See Ford Motor Company v. D'Amario, 732 So.2d 1143 (Fla. 2d DCA),

review granted, 743 So.2d 508 (Fla.1999).¹⁰

In conclusion, this case did not meet the three part test and a new trial based upon juror nondisclosure was not warranted. See Tejada v. Roberts, 760 So.2d 960 (Fla. 3d DCA 2000)

. The defendant's remaining contentions on the cross appeal similarly lack merit and also do not warrant a new trial. Accordingly, we reverse and remand for entry of an order reinstating the jury verdict.

Reversed and remanded with instructions.

FLETCHER, J., concurs.

SORONDO, J. (concurring)

I agree with and join Judge Gersten's well-reasoned majority opinion. I write separately to further discuss the recurring issue under review.

The issue of jury non-disclosure has become the losing litigant's trump card to be played immediately after the return of a trial jury's adverse verdict. This practice has led to a serious undermining of the integrity of jury verdicts and the finality, at least at the trial level, which they are supposed to bring to the litigants.

In Tejada v. Roberts, 760 So.2d 960 (Fla. 3d DCA 2000), this Court held that:

[T]he time to check the jurors' names against the clerk's lawsuit index is at the conclusion of jury selection. If a party does not request the opportunity to make the record search, then that litigant will not be heard to complain later about nondisclosure of information which could have been disclosed by reference to the clerk's index.

Because no such request was made in this case, the defense cannot "be heard to complain" about potential juror Ferrer-Young's nondisclosure. Although the issue was not properly preserved for appellate review, I nevertheless feel compelled to comment on one of the problems presented by this issue.

In De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995), the Florida Supreme Court stated:

In determining whether a juror's nondisclosure of information during voir dire warrants a new trial, courts have generally utilized a three-part test. First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party's lack

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