Tejada v. Roberts, 3D99-1432.

• Decision Date: 23 February 2000
• Docket Number: No. 3D99-1432.,3D99-1432.
• Citation: 760 So.2d 960
• Parties: Francisco TEJADA, M.D., Francisco Tejada, M.D., F.A.C.P., P.A., and Francisco Tejada, M.D., F.A.C.P., P.A., d/b/a American Oncology Centers, Inc., Appellants, v. Lucille ROBERTS, personally and as personal representative of the Estate of Frederick Roberts, Deceased, Appellee.
• Court: Florida District Court of Appeals

760 So.2d 960

Francisco TEJADA, M.D., Francisco Tejada, M.D., F.A.C.P., P.A., and Francisco Tejada, M.D., F.A.C.P., P.A., d/b/a American Oncology Centers, Inc., Appellants, v. Lucille ROBERTS, personally and as personal representative of the Estate of Frederick Roberts, Deceased, Appellee.

No. 3D99-1432.

District Court of Appeal of Florida, Third District.

February 23, 2000.

Opinion Granting Clarification May 3, 2000.

Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., and Shelley H. Leinicke, Fort Lauderdale, for appellants.

Gaebe, Murphy, Mullen & Antonelli and David Kleinberg, Coral Gables, for appellee.

Before JORGENSON, COPE and LEVY, JJ.

COPE, J.

After an adverse judgment in a medical malpractice case, plaintiff-appellee Lucille Roberts moved for a new trial on the ground that two jurors had failed to disclose prior litigation history. The trial court interpreted the case law as requiring a new trial when there has been a nondisclosure, even if there has been no showing of prejudice to the moving party. The court granted the new trial but invited the parties to seek clarification of the applicable legal standards in this court. We conclude that a new trial is not called for, and reverse the order under review.

I.

The plaintiff is the widow and personal representative of Frederick Roberts, who suffered from terminal liver cancer. Plaintiff alleged that defendants-appellants¹ were negligent in their treatment of the cancer, resulting in Mr. Roberts' death sooner than otherwise would have been the case.

During voir dire, the court and plaintiff's counsel asked the prospective jurors individually if they had been parties to any lawsuit. Jurors Paula C. Guerrero and Thelma Fornell answered no. Both served on the jury. The jury returned a defense verdict.

Thereafter plaintiff searched the index to the public records for Miami-Dade County, which appeared to show that in 1996 Ms. Guerrero had filed a domestic violence petition, and voluntarily dismissed it nine days later. The public record appeared to show that Ms. Fornell had been party to two civil lawsuits over twenty years ago, one as defendant in a small claims case filed in 1973 and the other as plaintiff in an auto negligence case filed in 1975. The trial court concluded that the case law required the ordering of a new trial, so long as it was shown that there was a nondisclosure of litigation history, and that the moving party need not show any prejudice from the nondisclosure. The court ordered a new trial, and defendants have appealed.

II.

It appears to this court that in the wake of De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), and this court's subsequent cases, particularly Wilcox v. Dulcom, 690 So.2d 1365 (Fla. 3d DCA 1997), there is a widespread misimpression that a losing litigant can obtain an automatic new trial if he or she can show that one of the jurors failed to disclose prior litigation history, regardless of the circumstances. The practice appears to be developing that when there is a loss in a large case, be it by plaintiff or defendant, the losing litigant scours the public record to try to find evidence of a litigation nondisclosure. This court at present has three such cases pending, all of which involve substantial jury trials.²

We think the existing case law has been misinterpreted. When there is a post-trial claim of juror misconduct—non-disclosure of an important fact in voir dire—the interest which is being vindicated is the moving party's right to a fair trial. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984)

. A new trial is called for if there is evidence that the moving party "was not accorded a fair and impartial jury or that his substantial rights were prejudiced...." State v. Rodgers, 347 So.2d 610, 613 (Fla.1977); see also Lowrey v. State, 705 So.2d 1367, 1369-70 (Fla.1998). Unless the moving party has been adversely affected in a material way, however, the jury's verdict should not be disturbed. See Florida Power Corp. v. Smith, 202 So.2d 872, 878 (Fla. 2d DCA 1967).

III.

The beginning point for analysis is the Supreme Court's decision in De La Rosa, which states:

In determining whether a juror's nondisclosure of information during voir dire warrants a new trial, courts have generally utilized a three-part test.... 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. We agree with this general framework for analysis....

659 So.2d at 241 (citation omitted). This is, as the court said, a "general framework for analysis," id., and judgment is called for in the application of the factors. We consider each of these elements in turn.

We start with the second element of the De La Rosa test, namely, "that the juror concealed the information during questioning." 659 So.2d at 241.³ With regard to juror Guerrero, we do not believe that any concealment has been demonstrated. Juror Guerrero had filed a petition for a domestic violence injunction in 1996, which she voluntarily dismissed nine days later.

Florida courts agree that to show concealment, the moving party must demonstrate (among other things) that the voir dire question was straightforward and not reasonably susceptible to misinterpretation. See Coleman v. State, 718 So.2d 827, 830 (Fla. 4th DCA 1998)

; Blaylock v. State, 537 So.2d 1103, 1106 (Fla. 3d DCA 1988); Mitchell v. State, 458 So.2d 819, 821 (Fla. 1st DCA 1984).

When the subject of prior litigation was raised by the trial court in voir dire, the court said:

I'll ask you ... have you been a party to a lawsuit.

What I mean by that is, have you brought a court action against somebody else seeking money from them or if someone brought an action against you, seeking money from you. And it could be because of an auto accident, breach of contract, many other things, divorces and whatnot.

But let me know if you have been a party, a plaintiff or defendant, in a case yourself or maybe a close family member has been involved in a lawsuit. Let me know that as well.

(Emphasis added).

When plaintiffs counsel questioned the jurors, he said:

He [the judge] asked you if you had ever been a party to a lawsuit. And again, the reason isn't to embarrass you, because you know when you were in the lawsuit, you may have won and you thought it was great or you lost, thought it stunk. Or you may have been a defendant and think all the plaintiffs are out to get their money or you may have been a plaintiff and thought otherwise.

It's really important what you bring to the stand on this issue. So I'm going to ask you, each one of you by name whether or not you have ever been a party to a lawsuit. And I mean, any kind of lawsuit, a divorce, a collection of a debt, a breach of contract, an assault and battery, an auto accident, a defective product, a medical negligence case, such as this case, a divorce, anything at all.

(Emphasis added).

The trial court and counsel framed the inquiry in terms of an action for damages. A petition for a domestic violence injunction is not an action for damages. We do not think that a reasonable juror would conclude that a petition for domestic violence amounts to a "lawsuit" for purposes of the voir dire questions that were asked. Indeed, it may not be clear to the average juror that a petition for domestic violence injunction is actually a civil, as opposed to criminal, matter. There was no concealment.

We also suggest that the court and counsel tread on thin ice when they assume that a juror knows exactly what a "lawsuit" is. Law students have drummed into them the fact that under the Rules of Civil Procedure, a civil action commences with the filing of a complaint. See Fla. R. Civ. P. 1.050. Thus, under a civil procedure definition, a demand letter or prelitigation settlement is not disclosable, but the filing of a lawsuit is.

Lay jurors are not law students and do not have the benefit of a course in civil procedure. Experience suggests that jurors do not have a clear understanding of when a lawsuit technically begins. We suspect jurors believe that a lawsuit occurs when the parties proceed to a jury trial in open court, and that all preliminary steps are not a "lawsuit." See Jay M. Zitter, Effect of juror's false or erroneous answer on voir dire regarding previous claims or actions against himself or his family, 66 A.L.R.4th 509 § 6 (1988). "Called as they are from all walks of life, many [jurors] may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. at 555, 104 S.Ct. 845. We need not explore this point further as to Juror Guerrero (who voluntarily dismissed her petition without a trial) because in any event, the voir dire questions did not call for disclosure of a domestic violence petition.

We reach a different conclusion as to juror Fornell, who gave her occupation as "banker," evidently meaning bank officer. Since some bank officers through their work experience become quite familiar with the litigation process, plaintiff's showing was sufficient to call for an interview of juror Fornell on the issue of concealment.⁴ See De La Rosa, 659 So.2d at 241

(three-part test is used for deciding whether to grant jury interview or new trial). No interview will be needed in this case, however, because as explained later in this opinion, other elements of the De La Rosa test are not satisfied.

IV.

We next address the requirement that "the complaining party must establish that the information is relevant and material to jury service in the case." Id. This is the part of the De La Rosa test which is proving most troublesome, but we think the test is straightforward. The...