Hall by and through Hall v. Daee, 88-1628
| Decision Date | 17 April 1990 |
| Docket Number | No. 88-1628,88-1628 |
| Citation | 570 So.2d 296 |
| Parties | 15 Fla. L. Weekly D2827, 15 Fla. L. Weekly D996 Ebony HALL, by and through her parents and natural guardians, James HALL and Emily Hall, and James Hall and Emily Hall, individually, Appellants, v. Hosain DAEE, M.D., Hosain Daee, M.D., P.A., Raul Hernandez, M.D., City of Homestead, d/b/a James Archer Smith Hospital, and the Florida Patients Compensation Fund, Appellees. |
| Court | Florida District Court of Appeals |
An Appeal from the Circuit Court for Dade County; Sidney B. Shapiro, Judge.
Stanley M. Rosenblatt, and Daniel K. Bandklayder, Miami, for appellants.
Stephens, Lynn, Klein & McNicholas, and Debra J. Snow, Miami, for appellees Hosain Daee, M.D., and Hosain Daee, M.D., P.A.
Kubicki, Bradley, Draper, Gallagher & McGrane, and Betsy Gallagher, Miami, for appellee City of Homestead, d/b/a James Archer Smith Hosp.
Fowler, White, Burnett, Hurley, Banick & Strickroot, and Henry Burnett, and Steven E. Stark, Miami, for appellee Raul Hernandez, M.D.
Joe N. Unger, Miami, for appellee The Florida Patients Compensation Fund.
Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
Affirmed. Woods v. State, 490 So.2d 24 (Fla.), cert denied, 479 U.S. 954, 107 S.Ct. 446, 93 L.Ed.2d 394 (1986); Moore v. Morris, 475 So.2d 666 (Fla.1985); South Florida Beverage Corporation v. San Pedro, 499 So.2d 915 (Fla. 3d DCA 1986); Meli v. Dade County School Board, 490 So.2d 120 (Fla. 3d DCA), review denied, 500 So.2d 543 (Fla.1986); Del Monte Banana Company v. Chacon, 466 So.2d 1167 (Fla. 3d DCA 1985); Tilley v. Broward Hospital District, 458 So.2d 817 (Fla. 4th DCA 1984); Morganstine v. Rosomoff, 407 So.2d 941 (Fla. 3d DCA 1981); § 90.403, Fla.Stat. (1989).
This is a malpractice case arising out of defects sustained by the minor plaintiff during childbirth.
I would reverse the defendants' judgment entered below for a new trial on all issues because I believe that the trial court abused its discretion in failing to hold that the defendants' peremptory excusal of five of six sitting black jurors "demonstrate[d] ... that there [was] a strong likelihood that they [were] challenged solely because of their race," so as to cross the threshold erected by State v. Neil, 457 So.2d 481, 486 (Fla.1984), and require a neutral non-biased explanation for the challenges. Bryant v. State, 1990 WL 40364 () [15 FLW S179]; Thompson v. State, 548 So.2d 198 (Fla.1989); City of Miami v. Cornett, 463 So.2d 399 (Fla. 3d DCA 1985).
Quite apart from this, I also believe that the judgment entered in favor of Dr. Daee, based upon the jury finding that the statute of limitations had run as to him, should be set aside and a new trial ordered on that question alone. In my view, the trial court reversibly erred in two respects concerning this issue:
(a) The trial judge instructed the jury that the statute begins to run when a malpractice plaintiff is or should be aware either of the incident or the injury in question. In my view, this statement was clearly contrary to the law which requires knowledge of both the incident and the injury to trigger the limitations period. Elliot v. Barrow, 526 So.2d 989 (Fla. 1st DCA), review denied, 536 So.2d 244 (Fla.1988); Florida Patient's Compensation Fund v. Sitomer, 524 So.2d 671 (Fla. 4th DCA 1988), review dismissed, 531 So.2d 1353 (Fla.1988), quashed on other grounds sub nom. Smith v. Sitomes, 550 So.2d 461 (Fla.1989); Schafer v. Lehrer, 476 So.2d 781 (Fla. 4th DCA 1985). See generally Jackson v. Georgopolous, 552 So.2d 215 (Fla. 2d DCA 1989) (Lehan, J., concurring specially). The court should have instead instructed the jury, as the plaintiffs requested, in accordance with the charge specifically approved in Sitomer, which was directly contrary to the one actually given.
(b) In this connection, the court should not have excluded evidence that the child's mother, believing that her child's injuries had been caused by a congenital problem in her which might recur, rather than the malpractice of the present appellees, aborted a subsequent pregnancy. This testimony was obviously persuasively significant as to whether she actually knew or should have known the actual cause of the first child's injuries and was thus directly relevant to the limitations issue. Since all relevant testimony is presumptively admissible, Fla.Evidence Code § 90.402, and I see no foundation for the claim that there was any prejudicial impact to this testimony, much less one which would overcome its probative value, compare Perper v. Edell, 44 So.2d 78 (Fla.1949), I would find error on this ground as well.
Appellants, plaintiffs below, move for rehearing, clarification, and certification of this court's majority opinion affirming the judgments of the trial court in favor of the appellees, defendants below. Hall v. Daee, 570 So.2d 296 (Fla. 3d DCA 1990). We deny plaintiffs' motions for rehearing and clarification, but grant their motion for certification solely with respect to the issue concerning jury selection.
The facts relevant to this one issue are briefly stated. Plaintiffs, James and Emily Hall, the parents of Ebony Hall, brought suit against Dr. Hosain Daee, Dr. Raul Hernandez, and James Archer Smith Hospital, for malpractice for injuries their daughter allegedly sustained at birth.
During voir dire, the trial court allowed the three defendants to pool their peremptory challenges. Of the thirty-five veniremembers, six were black; five of those six were reached in voir dire. Four of those five were the subjects of defendants' peremptory challenges.
Dr. Hernandez exercised a peremptory challenge on one black potential juror, James Archer Smith Hospital exercised a peremptory challenge on another black potential juror, and Dr. Daee exercised a peremptory challenge on two black potential jurors. Three of the four stricken black panel members had close ties to the medical community. One black panel member served on the jury; one served as an alternate juror. When the plaintiffs, who are black, objected to defense counsels' striking of the four black potential jurors, claiming the strikes were being exercised in a racially discriminatory manner, the trial court carefully considered plaintiffs' motion and determined that there was no need to inquire as to the defendants' reasons for the strikes.
The plaintiffs argue that the final judgment must be reversed and a new trial ordered, where the trial court failed to conduct an inquiry as to why the defendants struck four out of five black veniremembers. The plaintiffs claim that this panel's majority decision does not conform to State v. Neil, 457 So.2d 481 (Fla.1984), and its progeny. We do not agree.
We conclude the trial court's decision not to conduct an inquiry into the basis for defendants' exercise of their peremptory challenges did not constitute an abuse of discretion. Pursuant to Neil, a trial court inquiry is required only if the challenging party can show a strong likelihood, and the trial judge then finds a substantial likelihood, that the peremptory challenges are being exercised in a racially discriminatory manner. State v. Neil, 457 So.2d at 486; accord Foster v. State, 557 So.2d 634 (Fla.3d DCA 1990).
In this case, in denying the plaintiffs' motion objecting to the defense's striking of four black prospective jurors, the court specifically found:
(1) There was "no pattern of exclusion of blacks;"
(2) the defendants were "using their challeges individually;" and
(3) there had been "no violation of the Neal [sic] decision."
The record in this case does not demonstrate that there was a strong likelihood that the jurors were challenged solely on the basis of their race. Here, there were five black prospective jurors. Of these five, three had close ties to the medical community. Of the two black prospective jurors who did not have ties to the medical community, one was selected to serve on the jury. Since this was a medical malpractice case, the trial court, therefore, had more than sufficient basis to find that there was not a substantial likelihood that the challenges were based on race.
Further, the Florida Supreme Court, in Neil, left the decision of whether to conduct an inquiry to the sound discretion of the trial court. Neil, 457 So.2d at 487. The supreme court's ruling, that the decision rests within the trial court's sound discretion, was recently reaffirmed by the court in Reed v. State, 560 So.2d 203 (Fla.), cert. denied, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990). In Reed, the court stated:
Within the limitations imposed by State v. Neil, the trial judge necessarily is vested with broad discretion in determining whether peremptory challenges are racially intended. State v. Slappy [522 So.2d 18 (Fla.1988) ]. Only one who is present at the trial can discern the nuances of the spoken word and the demeanor of those involved.
Reed, 560 So.2d at 206. The court went on to say:
In trying to achieve the delicate balance between eliminating racial prejudice and the right to exercise peremptory challenges, we must necessarily rely on the inherent fairness and color blindness of our trial judges who are on the scene and who themselves get a "feel" for what is going on in the jury selection process.
Reed is similar to the present case. In Reed, the prosecutor used eight of his ten peremptory strikes to excuse blacks from the jury. The trial court determined that there had not been a prima facie showing of exclusion of jurors on a racial basis. Reed v. State, 560 So.2d at 206. The trial court, however, permitted the prosecutor to give a voluntary explanation...
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