De La Rosa v. Zequeira
| Decision Date | 11 May 1995 |
| Docket Number | No. 83369,83369 |
| Citation | 659 So.2d 239 |
| Parties | 20 Fla. L. Weekly S222 Lourdes DE LA ROSA, as Personal Representative of the Estate of Manuel De La Rosa, deceased, Petitioner, v. Marcos A. ZEQUEIRA, Respondent. |
| Court | Florida Supreme Court |
Herman J. Russomanno and Paul M. Bunge of Floyd, Pearson, Richman, Greet, Weil, Brumbaugh & Russomanno, P.A., Miami, for petitioner.
Philip D. Parrish and Marlene S. Reiss of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for respondent.
We have for review Zequeira v. De La Rosa, 627 So.2d 531 (Fla. 3d DCA 1993), based on conflict with Mitchell v. State, 458
So.2d 819 (Fla. 1st DCA 1984), Mobil Chemical Company v. Hawkins, 440 So.2d 378 (Fla. 1st DCA 1983), review denied, 449 So.2d 264 (Fla.1984), and Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972), cert. denied, 275 So.2d 253 (Fla.1973). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. We quash the Third District's decision with instructions to reinstate the trial court's order granting a new trial because a juror failed to disclose his prior litigation history.
Lourdes De La Rosa (De La Rosa), as personal representative of her deceased husband's estate, brought a medical malpractice action against various defendants, including Dr. Marcos Zequeira (Zequeira). During voir dire at trial, De La Rosa's counsel asked the prospective jurors whether any of them, their family members, or close friends had ever been a party to a lawsuit as a plaintiff or as a defendant. In response to counsel's questions, one juror described a workers' compensation claim he had filed to recover for an injury to his hand. Another juror said she had been a plaintiff in a personal injury suit. A third juror explained that, as a planner for a condominium, he had represented the condominium in approximately 70 to 80 lawsuits. Yet another explained that he had been involved in a lawsuit involving his company. Throughout this entire question and answer colloquy, one of the jurors, who was later selected as the foreperson, remained silent.
After a trial, the jury returned a verdict against De La Rosa. In a motion for new trial, De La Rosa asserted that the jury foreperson's failure to divulge his participation in numerous prior lawsuits constituted material misconduct which entitled De La Rosa to a new trial. The trial court granted the motion, 1 but the Third District, by a two-to-one vote, reversed and reinstated the jury's verdict.
In Loftin v. Wilson, 67 So.2d 185 (Fla.1953), we explained the major reasons for interviewing jurors on voir dire [T]o ascertain whether a cause for challenge exists, and to ascertain whether it is wise and expedient to exercise the right to peremptory challenge given to parties by the law....
It is the duty of a juror to make full and truthful answers to such questions as are asked him, neither falsely stating any fact, nor concealing any material matter, since full knowledge of all material and relevant matters is essential to the fair and just exercise of the right to challenge either peremptorily or for cause. A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, is guilty of misconduct, and such misconduct, is prejudicial to the party, for it impairs his right to challenge.
Id. at 192 (quoting Pearcy v. Michigan Mut. Life Ins. Co., 111 Ind. 59, 12 N.E. 98, 99-100 (1887)).
In determining whether a juror's nondisclosure of information during voir dire warrants a new trial, courts have generally utilized a three-part test. Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972), cert. denied, 275 So.2d 253 (Fla.1973). First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party's lack of diligence. Id. at 380. We agree with this general framework for analysis and note that the trial court expressly applied this test in its order granting a new trial.
On numerous occasions, our appellate courts have reversed for jury interviews or new trials, where jurors allegedly failed to disclose a prior litigation history or where other information relevant to jury service was not disclosed. Bernal v. Lipp, 580 So.2d 315 (Fla. 3d DCA 1991); Indus. Fire & Cas. Ins. Co. v. Wilson, 537 So.2d 1100 (Fla. 3d DCA 1989); Mitchell v. State, 458 So.2d 819 (Fla. 1st DCA 1984); Smiley v. McCallister, 451 So.2d 977 (Fla. 4th DCA 1984); Mobil Chemical Company v. Hawkins, 440 So.2d 378 (Fla. 1st DCA 1983); and Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972). Similarly, we find that the trial court here acted well within its authority in concluding that the juror's failure to disclose his prior history of litigation deprived De La Rosa of a fair and impartial trial.
The majority opinion in the district court appeared to be particularly concerned that the juror's prior litigation history did not include a case like the one being tried and that, since the juror remained silent, there was no certainty that he heard and understood the questions. Judge Baskin's dissent responded to these concerns and we quote with approval that response:
Here, as in Bernal [v. Lipp, 580 So.2d 315 (Fla. 3d DCA 1991) ], the juror's involvement in six prior lawsuits as both defendant and plaintiff is material. He was a defendant in five prior lawsuits brought by creditors; his involvement may well have affected his point of view in this action. Moreover, in view of the juror's involvement in so many lawsuits, it is difficult to believe he simply did not think the questions posed by counsel applied to him. Bernal should not be viewed as distinguishable from this case on the ground that this juror's involvement was not in a personal injury action: A person involved in prior litigation may sympathize with similarly situated litigants or develop a bias against legal proceedings in general. In these circumstances, counsel must be permitted to make an informed judgment as to the prospective juror's impartiality and suitability for jury service.
The concealment prong of the test was also met in this case: the juror failed to respond truthfully to counsel's questions concerning his litigation participation. See Industrial Fire & Casualty Ins. Co. v. Wilson, 537 So.2d 1100 (Fla. 3d DCA 1989). As the trial court stated in its order, "[t]he courtroom is quite small and Plaintiff's attorney was standing no more than 5 feet away from the jury panel." There were several questions regarding involvement in prior lawsuits including whether the jurors were involved in 'a commercial dispute where you have been involved as a litigant.' There is no record basis supporting a conclusion that the juror did not listen to or hear any of counsel's questions. Assuming, arguendo, that the juror had no intention of misleading counsel, "the omission nonetheless prevented counsel from making an informed judgment--which would in all likelihood have resulted in a peremptory challenge." Bernal, 580 So.2d at 316-17. The majority's holding that a juror's failure to answer counsel's question does not constitute concealment precludes collective questioning of jurors and will compel attorneys to obtain individual oral or written responses in order to fulfill the concealment prong of the Bernal test.
Zequeira v. De La Rosa, 627 So.2d 531, 533-34 (Fla. 3d DCA 1993) (Baskin, J., dissenting) (footnotes omitted).
Judge Baskin's dissenting opinion contains a complete yet concise analysis of all of the issues involved herein. Rather than repeat that analysis, we approve and adopt her opinion as our own.
Accordingly, we quash the Third District decision and remand with instructions to affirm the trial court's order for a new trial.
It is so ordered.
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