Fine v. Shands Teaching Hosp. and Clinics

• Decision Date: 29 October 2008
• Docket Number: No. 1D07-6071.,1D07-6071.
• Citation: 994 So.2d 426
• Parties: Lisa C. FINE, as Personal Representative of the Estate of Cory Fine, Appellant, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., Appellee.
• Court: Florida District Court of Appeals

994 So.2d 426

Lisa C. FINE, as Personal Representative of the Estate of Cory Fine, Appellant, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., Appellee.

No. 1D07-6071.

District Court of Appeal of Florida, First District.

October 29, 2008.

Frank A. Ashton and Kevin W. Moore, Jacksonville, for Appellant.

Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee, and S. William Fuller, Jr., of Fuller, Mitchell, Hood & Stephens, LLC, Tallahassee, for Appellee.

PER CURIAM.

Appellant, Lisa C. Fine, as Personal Representative of the Estate of Cory Fine, her late husband, appeals the order denying her motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial, which was based on two jurors' nondisclosure of their litigation history during voir dire. Appellant argues in part that the trial court erred in focusing on whether the jurors were actually biased in this case when addressing the materiality of the nondisclosures. We agree with Appellant and, therefore, reverse the order and remand for reconsideration.

Following a jury trial in Appellant's medical malpractice case against Appellee, Shands Teaching Hospital and Clinics, Inc., in which the jury found in Appellee's favor, Appellant moved to interview the jurors and for a judgment notwithstanding the verdict, or in the alternative, for a new trial based upon the jurors' nondisclosures. After the jurors' interviews, the trial court denied Appellant's motion. In doing so, the court set forth in part:

[I]f I was to grant the plaintiff's position that the law is that you may have exercised a challenge, that, in and of itself, would be sufficient to grant a new trial, then I believe we ignore the fact that my conclusion is that these jurors were not affected by their past experiences in carrying out their responsibilities in this particular case.

If I had any indication that there was any connection between their past experiences and their carrying out their responsibilities in this case, I would gladly grant the plaintiff an opportunity to retry the case.

....

Based upon what they said during the jury interview, I cannot find that their failure to disclose, in fact, influenced their deliberation and verdict in this ... matter.

As a consequence I'm going to deny the motion....

This appeal followed.

In determining whether a juror's nondisclosure of information during voir dire warrants a new trial, a three-part test is utilized: (1) whether the information is relevant and material to jury service in the case; (2) whether the juror concealed the information during questioning; and (3) whether the failure to disclose the information was not attributable to the complaining party's lack of diligence. De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995). We agree with Appellant that the trial court erred in focusing on whether or not it believed the jurors were biased when deliberating this case rather than on what Appellant's counsel would have done during voir dire had the litigation history been disclosed. The supreme court has observed that materiality is "only shown where the `omission of the information prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.'" See Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334, 340 (Fla.2002) (citation omitted); see also McCauslin v. O'Conner, 985 So.2d 558, 561 (Fla. 5th DCA 2008) ("Omitted information has been considered relevant and material where it implies a bias...