Hatin v. Mitjans, 92-1929

• Decision Date: 09 November 1993
• Docket Number: No. 92-1929,92-1929
• Citation: 629 So.2d 194
• Parties: 18 Fla. L. Weekly D2379 Martha M. HATIN, Appellant, v. Aurelio MITJANS, M.D., et al., Appellees.
• Court: Florida District Court of Appeals

Page 194

629 So.2d 194

18 Fla. L. Weekly D2379

Martha M. HATIN, Appellant, v. Aurelio MITJANS, M.D., et al., Appellees.

No. 92-1929.

District Court of Appeal of Florida Third District.

Nov. 9, 1993.

Rehearing Denied Jan. 18, 1994.

Anderson Moss Parks & Sherouse, Hicks, Anderson & Blum and Ralph O. Anderson, Miami, for appellant.

Reiser & Allison, James C. Blecke, Fowler White Burnett Hurley Banick & Strickroot and John R. Kelso and Steven E. Stark, Miami, for appellees.

Before HUBBART and BASKIN and COPE, JJ.

PER CURIAM.

This is an appeal by the plaintiff Martha M. Hatin from a trial court order entered after this court remanded the cause to the trial court with directions (1) to allow the defendants to adduce evidence by examining the trial jurors in the case to overcome the rebuttable presumption of prejudice which arose from an unrecorded, pre-verdict communication between the previous trial judge and the jury foreman in the presence of other jurors in this medical malpractice case, and (2) after receiving such evidence, to determine whether this unrecorded pre-verdict, judge-juror communication was prejudicial to the plaintiff or was harmless in nature. Hatin v. Mitjans, 578 So.2d 289, 291 (Fla.3d DCA 1991). The defendants, upon remand, deposed only the jury foreman and did not depose or examine any of the other trial jurors who were present during such contact; upon receipt of this deposition, the trial court entered the order appealed from, finding that the defendants had established that the subject unrecorded judge-juror communication was not prejudicial to the plaintiff and, accordingly, denied the plaintiff's motion for a new trial.

We reverse the order appealed from, as well as the underlying judgment for the defendants, and remand the case to the trial court for a new trial. We reach this result because the defendants did not establish in any respect that the judge-juror communication was non-prejudicial in nature--that, for example, the communication consisted solely of small talk. To the contrary, the jury foreman denied that there was any communication whatever between the trial judge and himself in the judge's chambers just prior to the announcement of the verdict, as testified to by the court clerk and as accepted by this court in its prior opinion in this case. Stated differently, no testimony of any kind was received on remand as to the nature of the established judge-juror communication in this case; consequently, the...