Davis v. Cohen, 3D99-3128.
| Decision Date | 20 March 2002 |
| Docket Number | No. 3D99-3128.,3D99-3128. |
| Parties | Steven Gerald DAVIS, Sunshine Industries of Coral Springs, Inc., a Florida Corporation, DSI Transports, Inc. a Texas Corporation, and Nieves Gomez, Appellants, v. Ulysses COHEN and Cebrena Poitier, as co-personal representatives of the Estate of Arletha Cogdell Walton, and Colin Walton, Jr., as personal representative of the Estate of Colin Walton, Sr., Appellees. |
| Court | Florida District Court of Appeals |
Hightower & Rudd; Richard A. Sherman and Rosemary B. Wilder; Barnett & Barnard, Fort Lauderdale; Fowler, White, Gillen, Boggs, Villareal & Banker and Bonita Kneeland Brown, for appellants.
Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, and Joel Perwin, Miami; Gary, Williams, Parenti, Finney, Lewis, McManus, Watson, Sperando; Caruso, Burlington, Bohn and Compiani, and Russell S. Bohn, West Palm Beach, for appellees.
Before LEVY, FLETCHER and SORONDO, JJ.
Defendants appeal judgments entered after a jury trial in a wrongful death action arising from a motor vehicle accident.
What began as a complex appeal involving several difficult issues, has become a single issue appeal decided by the Florida Supreme Court's recent decision in Roberts v. Tejada, 814 So.2d 334 (Fla.2002).1
Voir dire examination in this case began with the following comments by the trial judge:
Thereafter, the judge divided the panel into two groups. He placed fifteen prospective jurors in the jury box and left the balance in the courtroom's gallery. The judge then instructed counsel to direct their questions to the fifteen in the jury box. The prospective juror who is the center of this appeal is Mr. Coats. He was sitting in the gallery when voir dire examination began.
The first attorney to address the jury asked the following question:
Counsel subsequently questioned several prospective jurors who responded affirmatively to his question about their prior litigation experience.2 Extensive questioning of these jurors followed. In response to these questions, the jurors described their own litigation experience as well as that of certain close relatives.
Some time later, defense counsel questioned the jury as follows:
Although all of these questions were addressed to the fifteen prospective jurors sitting in the jury box, the questions were audible to Mr. Coats and the others who were sitting in the gallery.
When Mr. Coats's group was moved into the jury box, the trial judge stated:
Well, you've been listening, so hopefully this go around won't take as long as the first go around, and, [counsel], it's all yours.
As pertinent to our analysis, plaintiffs counsel asked:
How about any of the new jurors, ever file a claim or have a claim made against them, file a lawsuit, have a lawsuit filed against them? All right.
Mr. Coats was one of the prospective jurors who raised his hand.3 Under questioning by one of the defense attorneys, the following exchange took place:
Mr. Coats did not reveal any other experiences with the court system.
During the actual process of selecting the jury, the defense moved to remove him for cause. When the motion was denied, the defense tried to exercise a peremptory challenge, which was also disallowed by a successful Melbourne4 objection. Mr. Coats served on the jury and was ultimately selected as foreperson by his fellow jurors.
After a nine-day trial, the jury returned a verdict for plaintiffs and awarded significant monetary damages. Thereafter, defendants filed Motions for New Trial raising various errors and, as has now become customary for the losing party in almost every case, Motions to Interview Jurors. All motions were denied.
A post-verdict investigation by the defense revealed that Mr. Coats had not been totally forthcoming when revealing his history of litigation. In fact, he had failed to identify a personal injury civil suit he filed against Metropolitan Dade County in 1991.5/6 More disturbing is the fact that he was represented in that case by the firm of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson and Sperando (the Gary firm); the very firm representing plaintiff Colin Walton, Sr. in the present case. Even more disturbing is the fact that the defendant, who Mr. Coats sued in his 1991 lawsuit, was represented by the attorney representing defendant Steven Davis in this case. This attorney had taken Mr. Coats's deposition in the 1991 lawsuit.
Defendants argue that Mr. Coats's failure to reveal the existence of the personal injury lawsuit, his failure to reveal the fact that he hired the Gary firm to represent him, and his additional failure to acknowledge that he knew the attorney for Steven Davis require reversal.7
In De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995), the Florida Supreme Court stated that:
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...
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