Murphy v. Hurst, 5D02-3047.
| Decision Date | 06 August 2004 |
| Docket Number | No. 5D02-3047.,5D02-3047. |
| Citation | 881 So.2d 1157 |
| Parties | April MURPHY, Appellant, v. Martha C. HURST, M.D., et al, Appellee. |
| Court | Florida District Court of Appeals |
James C. Blecke of Deutsch & Blumberg, P.A., Miami, and Brasfield, Fuller, Freeman, Lovell & O'Hern, Pa., St. Petersburg, for Appellant.
Richard S. Womble, David R. Kuhn of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees, Martha C. Hurst, M.D., and Orlando Health Care Group.
Thomas E. Dukes, III, G. Franklin Bishop, III, and Michelle M. Perez-Sotolongo of McEwan, Martinez & Dukes, P.A., Orlando, for Appellees, Richard S. Tejedor, M.D. & Central Florida Pulmonary Group, P.A.
April Murphy appeals a judgment for the defendants in a medical malpractice case. Murphy contends that she is entitled to a new trial because the court denied her mid-trial motion to strike a juror, who, it was learned mid-trial, may have been treated five or ten years earlier for what may have been asthma by a doctor associated with one of the defendant medical groups. We affirm.
Murphy sued two medical groups and two doctors, alleging that she had been misdiagnosed as having asthma and that she was injured by inappropriate doses of steroids over an extended period. Although only two doctors were named as defendants, several doctors from the two medical groups treated Murphy and were introduced during voir dire. The court asked the venire if they were acquainted with any of the doctors, and Juror Moore apparently did not raise her hand. Later, counsel asked the venire if any of them had ever had asthma. Juror Moore apparently did not raise her hand. After discussions with venire persons who responded affirmatively to the question, counsel asked: "Has anyone else had any problems associated with asthma," and Juror Moore apparently did not respond.
Apparently, Doctor Decker, who was associated with Central Florida Pulmonary Group, thought he recognized Juror Moore, and the group verified through its records that Moore had been its patient. Later, as the proceedings were about to begin, defense counsel suggested to the court that Juror Moore should be questioned. The following transpired after Juror Moore was brought to the courtroom:
Murphy's counsel did not question Moore. Defense counsel said that he would strike Juror Moore at the next break. The court responded that if the defense wanted to make a motion, it would have to be at once. At that, defense counsel for each of the two medical groups and defendant physicians announced that there was no objection to Juror Moore.
Later, after the jury was brought into the courtroom, Murphy's counsel approached the bench and the following ensued:
Murphy asserts that her right to make an informed decision about challenging for cause or peremptorily was violated by the failure of Juror Moore to disclose "her history of treatment for asthma and especially her treatment with the defendant, Central Florida Pulmonary Group." Murphy argues that the court should have removed Juror Moore from the jury and replaced her with the alternate juror and that she is entitled to a new trial because the court refused to do so. In De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995), the supreme court approved a three-part test to be used in determining whether a juror's failure to disclose warrants a new trial. To be entitled to relief, the complaining party must show that: (1) the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party. Id. In the instant case, the trial court ruled that what Juror Moore failed to disclose was not material, but rather was remote and trivial. The court pointed out that all of the attorneys were very experienced counsel, and concluded that Juror Moore's ability to serve as a juror would not be affected by her treatment at the Central Florida Pulmonary Group. The court also noted that Murphy had not moved for a mistrial.
The standard of review of a trial court's application of the De La Rosa test is abuse of discretion. See Garnett v. McClellan, 767 So.2d 1229, 1231 (Fla. 5th DCA 2000)
. Whether the concealed information is material involves consideration of many factors, and the determination of materiality should primarily be made at the trial level where "the dynamics and context of the entire trial process can best be evaluated." Roberts v. Tejada, 814 So.2d 334, 345 (Fla.2002). In the instant case, we find no abuse of discretion.
In Roberts, which involved jurors who failed to disclose their experience with lawsuits, the court held that there is no per se rule that involvement in any particular prior legal matter is or is not material. Id. at 345. The materiality determination, for which there is no bright-line test, must be based on the facts and circumstances of each case. Id. at 341 (quoting Garnett, 767 So.2d at 1230-31). Nondisclosure is considered material if it is substantial and important so that if the facts were known, the defense may have been influenced to peremptorily challenge the juror. Id. (quoting Garnett, 767 So.2d at 1230-31). Remoteness in time is one aspect to consider in determining the impact, if any, of a juror's prior exposure to the legal system on his present ability to serve in a particular case. Id. at 342. Other factors may include the character and extensiveness of the litigation experience, and the juror's posture in the litigation. Id.
Cases in which the nondisclosure was deemed material include:
De La Rosa (); Bernal v. Lipp, 580 So.2d 315 (Fla. 3d DCA 1991) (); Industrial Fire & Cas. Ins. Co. v. Wilson, 537 So.2d 1100 (Fla. 3d DCA 1989) (...
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