Public Health Trust v. Metellus

• Decision Date: 01 November 2006
• Docket Number: No. 3D05-1989.,3D05-1989.
• Citation: 948 So.2d 4
• Parties: PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY d/b/a Jackson Memorial Hospital and JMH Health Plan, Appellants, v. Gelerme METELLUS and Marie Lacroix Metellus, Appellees.
• Court: Florida District Court of Appeals

948 So.2d 4

PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY d/b/a Jackson Memorial Hospital and JMH Health Plan, Appellants, v. Gelerme METELLUS and Marie Lacroix Metellus, Appellees.

No. 3D05-1989.

District Court of Appeal of Florida, Third District.

November 1, 2006.

Rehearing and Rehearing En Banc Denied February 2, 2007.

Murray A. Greenberg, Miami-Dade County Attorney, and Craig E. Leen, Assistant County Attorney, for appellants.

Hoffman & Hertzig and Carl H. Hoffman, Coral Gables, for appellees.

Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

The defendants in a medical malpractice case appeal from an order granting a new trial after a defense verdict because a serving juror, in answer to a question on voir dire as to whether she had been involved in a "lawsuit," failed to reveal that she had been in a divorce and was the subject of collection efforts by creditors against her. For two reasons, we reverse for entry of judgment in accordance with the verdict.

First, in the absence of any definition of "lawsuit" which would, as in Roberts v. Tejada, 814 So.2d 334 (Fla.2002), include such proceedings, there was no deliberate misstatement by the juror which would justify relief under De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995).

Second, and quite separately, there was no showing, as is also required, that counsel would have exercised a peremptory challenge against the juror had he been given the information in question. See Freedman v. De La Cuesta, 929 So.2d 25 (Fla. 3d DCA 2006).

Reversed.

FLETCHER, J., concurs.

SHEPHERD, J., specially concurring.

I concur in the judgment on the ground that the juror nondisclosures in this case were not material within the meaning of Roberts v. Tejada, 814 So.2d 334, 340 (Fla. 2002), and its progenitor, De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995). I am less sanguine about the majority conclusion that there was no concealment or "deliberate misstatement" within the meaning of the controlling case law in this area. However, because materiality is a sine qua non to the grant of a new trial on the basis of juror nondisclosure, Tejada, 814 So.2d at 339 (delineating three elements, all of which must exist for a party to be awarded a new trial on the basis of juror nondisclosure), we need not reach that question. See Mann v. State, 937 So.2d 722, 730 (Fla. 3d DCA 2006) (Shepherd, J., specially concurring)(noting that "[the] procedural ground [was] a sufficient ground to affirm the...