41
Fla. L. Weekly D2282aTop of Form

Torts
— Automobile accident — New trial — Juror misconduct — Trial court properly
found that plaintiff was not entitled to new trial on ground that juror engaged
in misconduct by posting comments on social media in violation of court’s
instructions where comments contained in juror’s tweets were determined to be
not prejudicial to plaintiff — Trial court properly found that juror’s failure
to disclose on voir dire that he and his father had been involved in an
accident was not material, and not basis for new trial

MICHELE
L. MURPHY, Appellant, v. MICHAEL B. ROTH, Appellee. 4th District. Case No.
4D14-4830. L.T. Case No. 502012CA004186XXXXMB. October 5, 2016. Appeal from the
Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Janis
Brustares Keyser, Judge. Counsel: Spencer T. Kuvin of the Law Offices of Craig
Goldenfarb, P.A., West Palm Beach, and Andrew A. Harris of Burlington &
Rockenbach, P.A., West Palm Beach, for appellant. Carri S. Leininger of
Williams, Leininger & Cosby, P.A., North Palm Beach, for appellee.

(LINDSEY,
NORMA S., Associate Judge.) Michele L. Murphy (hereinafter “Plaintiff”) appeals
from a final judgment and seeks review of an order denying her motion for a new
trial. Plaintiff contends that a juror engaged in misconduct by posting
comments about the case on social media and by failing to disclose certain
information during voir dire. The sole issue on appeal is whether the
trial court abused its discretion in denying Plaintiff’s motion for a new trial
based on this alleged misconduct. For the reasons set forth below, we find that
it did not and affirm.

This
case involved an automobile accident. Plaintiff brought suit against Michael B.
Roth (“Defendant”), claiming that she sustained injuries due to Defendant’s
negligent operation of his vehicle. Issues of liability and damages were hotly
contested. At the trial below, Plaintiff claimed that she was hit from behind
by a phantom car, causing her to swerve and lose control, and that she was then
hit in the front by Defendant’s car and forced off the road. Defendant claimed
that Plaintiff struck his car on the rear passenger side, skewing his car to
the right, and then hit the front right side of his car, sending him spinning
off the road.

At
the beginning of voir dire, the trial court instructed the jurors not to
communicate with anyone about the case or their jury service:

You must not communicate with
anyone, including friends and family members, about this case, the people and
places involved, or your jury service. You must not disclose your thoughts
about this case or ask for advice on how to decide this case.

I want to stress that this
rule means you must not use electronic devices or computers to communicate
about this case, including tweeting, texting, blogging, emails, posting
information on a website or chatroom, or any other means at all. Do not send or
accept any messages to and from anyone about this case or your jury service.

Also,
during voir dire, the trial court inquired whether anyone had been
involved in a similar situation:

This is a case about injuries
received in an automobile accident. Ms. Murphy claims that Mr. Roth caused an
automobile accident that resulted in certain injuries. Mr. Roth denies those
claims. Instead, Mr. Roth claims Ms. Murphy caused the accident and that the
injuries from the accident are not as extensive as Ms. Murphy claims.

* *
*

All right. You have heard me
give you a brief description of what this case is about. And, again, that’s all
you’re going to be allowed to hear until a jury is picked. Is there anyone here
personally or has had a close relative or a very close friend involved in a
situation that sounds similar in any way to this case, whether or not it
resulted in a lawsuit or not?”

In
response, several prospective jurors discussed accidents involving themselves
or their family members, all of which involved either a lawsuit or an injury.
The trial court then asked: “All right. Anyone else?” The juror at issue herein
(“Juror 5”) did not respond.

Later
during voir dire, Plaintiff’s counsel asked if anyone had a family
member or friend who had undergone a cervical fusion. Juror 5 responded that
his step-mother was in a car accident and had some plates inserted in her neck,
but was not sure if the procedure was a cervical fusion. Plaintiff’s counsel
asked him a few follow-up questions about his stepmother’s recovery after
surgery, but did not inquire further about the accident or whether a lawsuit
arose.

At
another point during voir dire, Plaintiff’s counsel asked the jurors
about their feelings towards personal injury lawsuits. In addition to believing
that there were probably more frivolous lawsuits than there should be, Juror 5
stated the following:

I’m kind of like indifferent
about it. Like, I really don’t — it’s necessary. Some people, sure they need
it. But I feel like some people also do it just for the money, like he said up
front.

* *
*

I wouldn’t say 80%. I can’t
put a number on it. But I feel like, sure, a good amount of people sue for dumb
reasons.

After
the jury was selected and sworn, the trial court again gave an instruction to
the jury to not communicate about the case:

In this age of electronic
communication I want to stress again that just as you must not talk about this
case face-to-face, you must not talk about this case by using an electronic
device. Do not send or accept any messages related to this case or your jury
service. Do not discuss this case or ask for advice by any means at all,
including posting information on an Internet website, chatroom, or blog.

The
trial took place between May 12 and May 16, 2014. The jury returned a $39,000
verdict for past and future medical expenses and apportioned liability, 60% to
Plaintiff and 40% to Defendant. Since the jury did not find that Plaintiff had
suffered a permanent injury, no damages for pain and suffering were awarded.

Plaintiff
filed a motion for juror interview based on newly discovered evidence, wherein
she contended that her right to a fair and impartial jury was compromised by
Juror 5. Plaintiff also filed a motion for new trial incorporating, by
reference, her motion for juror interview. In support of these motions,
Plaintiff alleged that Juror 5 posted a series of tweets on his Twitter1 account during the days of jury
selection and trial, which included the following:

a. I got picked as a juror. .
.I hate this s— I’m so pissed, I even half assed all my answers and I dressed
terrible.

b. Being a juror isn’t bad,
people I’m working with are pretty cool. But I still hate the fact that I have
to be here all day.

c. Everyone is so money
hungry that they’ll do anything for it.

After
conducting two hearings, the trial court granted the motion for juror
interview. During the interview, Juror 5 admitted that the Twitter account in
question, although titled under a pseudonym, was his and that he posted all of
the tweets at issue. The trial court asked Juror 5 about his understanding of
the court’s instruction to not communicate about the case or his jury service
on social media. Juror 5 responded that he thought the instruction “pretty
much” meant “don’t talk about the case.” Juror 5 testified that he did not
tweet while sitting in the courtroom during the trial and that he did not
intentionally or deliberately disobey the court’s order regarding the use of
social media. Finally, Juror 5 denied telling anyone else his views about the
case at any time prior to the commencement of deliberations.

The
trial court specifically asked Juror 5 about his tweet that he “half assed” his
answers. Juror 5 replied that he was “kind of confused” by what Plaintiff’s
counsel was saying during jury selection. Juror 5 elaborated: “Because, like, I
got nervous so when he was asking me questions I didn’t really know what to say
so all my questions were all mumble jumbled and then that’s pretty much what I
meant by it.” And finally, the trial court asked Juror 5 whether he was
referring to the trial when he tweeted, “Everyone is so money hungry that they
will do anything for it”? Juror 5 responded:

No, ma’am, I was not. I was
actually tweeting about the fact that we got into an accident, me and my
father, May 2, and then my dad got the court order during the trial case, and
that’s when I woke up after my nap he told me about it.

After
conducting what would be the fourth post-trial hearing on this case, the trial
court denied Plaintiff’s motion and declined to take any action against Juror
5. Thereafter, the trial court entered a final judgment in favor of Plaintiff
for $27,535.17 from which this appeal was taken.

A trial
court’s order on a motion for new trial is reviewed for an abuse of discretion.
Duong v. Ziadie, 125 So. 3d 225, 227 (Fla. 4th DCA 2013). “If reasonable
people could differ as to the propriety of the court’s ruling, then the abuse
of discretion standard has not been met.” Taylor v. Magana, 911 So. 2d
1263, 1267 (Fla. 4th DCA 2005) (quoting Vanderbilt Inn on the Gulf v.
Pfenninger, 834 So. 2d 202, 203 (Fla. 2d DCA 2002)). As the Florida Supreme
Court explained in Canakaris v. Canakaris, “[i]n reviewing a true
discretionary act, the appellate court must fully recognize the superior
vantage point of the trial judge and should apply the ‘reasonableness’ test to
determine whether the trial judge abused his discretion.” 382 So. 2d 1197, 1203
(Fla. 1980). A discretionary ruling of a trial judge should be disturbed only
when the decision fails to satisfy this test of reasonableness. Id.

Plaintiff
argues that the comments posted within Juror 5’s tweets showed not only a
disdain for the court system and his jury service but also a clear bias against
Plaintiff which, when coupled with his failure to disclose a recent accident
involving him and his father, deprived Plaintiff of the right to a fair and
impartial jury. Accordingly, Plaintiff contends that the trial court abused its
discretion in denying her motion for a new trial. Defendant argues that Juror
5’s tweets do not amount to prejudicial misconduct and that Plaintiff cannot,
on this record, establish that she is entitled to a new trial based on the
nondisclosure of the recent accident.

“When
the embrace of social media is ubiquitous, it cannot be surprising that
examples of jurors using platforms like Facebook and Twitter ‘are legion.’ ” United
States v. Liu, 69 F. Supp. 3d 374, 386 (S.D.N.Y. 2014) (citation omitted).
“Prejudice can come through a whisper or a byte.” Dietz v. Bouldin, 136
S. Ct. 1885, 1895 (2016).

Although
no Florida court has directly addressed the issue of juror misconduct arising
from the use of social media during a trial, in United States v. Fumo,
655 F.3d 288 (3d Cir. 2011), the Third Circuit held that the trial court did
not abuse its discretion in denying the defendant’s motion for a new trial on
the basis of a juror’s comments about the trial on Facebook and Twitter. The
trial court questioned the juror and determined that, although in violation of
the court’s instruction not to discuss the case outside the jury room, the
comments were “nothing more than harmless ramblings having no prejudicial
effect.” Id. at 298-99. The trial court found that the comments “raised
no specific facts dealing with the trial,” and that nothing in the comments
“indicated any disposition toward anyone involved in the suit.” Id. at
306.

The
Third Circuit explained that “while prohibiting and admonishing jurors from
commenting — even obliquely — about a trial on social networking websites and
other internet mediums is the preferred and highly recommended practice, it
does not follow that every failure of a juror to abide by that prohibition will
result in a new trial.” Id. at 305. Rather, courts should determine if
the complaining party was “substantially prejudiced.” Id. In light of
the trial court’s findings, which were based in large part on the juror’s
testimony and demeanor, the Third Circuit reasoned that there was “no plausible
theory” for how the defendant “suffered any prejudice, let alone substantial
prejudice,” from the juror’s Facebook and Twitter comments. Id. at 306.

Similarly,
the Missouri Court of Appeals held that a trial court did not abuse its discretion
in denying a motion for a new trial based on a juror’s Facebook posts in which
he mentioned that he was on jury duty, noted that he was “sworn to secrecy” as
to the details of the case, and joked that “there is no beverage service and
the 3pm cocktail hour is not observed!” J.T. ex rel. Taylor v. Anbari,
442 S.W.3d 49, 57-60 (Mo. Ct. App. 2014). The Missouri court reasoned that the
trial court did not abuse its discretion in finding that the juror “did not
reveal any details about the case and any appearance of impropriety was not
more prejudicial to any party over the other.” Id. at 58 (internal
quotation marks omitted). The court explained that the question of whether a
new trial is required “is essentially a factual one, and that the trial court
is in the best position to determine the credibility of the witnesses and any
prejudicial effect of the alleged misconduct because it hears the evidence
regarding the alleged misconduct.” Id. at 59. The court further
emphasized that the juror’s remarks did not violate the trial court’s
“instructions not to post on Facebook about this case.” Id. (emphasis
in original). The court noted that: “To say the comments in this case, which
simply informed people [the juror] was serving jury duty, were improper simply
because they were posted on Facebook would be to ignore the reality of
society’s current relationship with communication technology.” Id. at
59-60.

In
addition, the Second Circuit held that a defendant’s Sixth Amendment right to
an impartial jury was not violated by a juror who “friended” a fellow juror and
posted comments on Facebook such as “Jury duty 2morrow. I may get 2 hang
someone . . . can’t wait,” and “Jury duty sucks!” See United States v.
Ganias, 755 F.3d 125, 130-33 (2d Cir. 2015), reh’g en banc granted on
other grounds by 791 F.3d 290 (2d Cir. 2015). In Ganias, the trial
court questioned the juror and credited his testimony that he deliberated
impartially and in good faith. The Second Circuit found that the trial court’s
credibility determination was not clearly erroneous and that it did not abuse
its discretion in denying the motion for a new trial. Id. at 132.
Likewise, in United States v. Fen Li, 630 Fed. Appx. 29, 32-33 (2d Cir.
2015), the Second Circuit affirmed the denial of a defendant’s motion for a new
trial on the grounds that a tweeting juror violated his Sixth Amendment right
to a fair and impartial jury where the trial court interviewed the juror and
found, based on her responses and explanations, that she was neither dishonest
nor biased.

In
the instant case, Plaintiff relies on Dimas-Martinez v. State, 385
S.W.3d 238 (Ark. 2011). In that case, the Arkansas Supreme Court held that a
defendant in a death penalty case was denied a fair trial where a juror
disregarded the trial court’s instructions and tweeted about the case, even
after the trial court questioned the juror about his tweets and admonished him
to stop tweeting and to otherwise refrain from discussing the case any further.
During the proceedings, the juror tweeted: “Choices to be made. Hearts to be
broken. We each define the great line.” Id. at 246. When the trial court
questioned the juror about the tweet, the juror admitted posting on Twitter
during the trial and explained that the tweet in question did not pertain only
to the case, but also to “future stuff.” Id. The trial court refused to
strike the juror. Id. The Arkansas Supreme Court found troubling the
fact that “even after the juror was questioned, admitted to the misconduct, and
was again admonished not to discuss the case, he continued to tweet,
specifically during sentencing deliberations.” Id. at 247.

Dimas-Martinez
is
distinguishable in that it involved a situation where a juror continued to post
comments on social media even after the trial court became aware, mid-trial, of
the juror’s postings and expressly instructed him to stop. Thus, the juror was
unquestionably either unwilling to follow the court’s instructions or simply
incapable of doing so. Here, Juror 5’s tweets were discovered after the verdict
had been rendered and were the subject of four separate hearings conducted by
the trial court, including one in which the trial court questioned Juror 5 in
detail about these tweets.

In
denying Plaintiff’s motion for a new trial and taking no action against Juror
5, the trial court necessarily credited and accepted Juror 5’s explanation that
this misconduct was neither intentional nor willful, and that none of his
tweets related specifically to this case. Although its order contained no
written findings, the trial court likewise necessarily found that the comments
contained in Juror 5’s tweets were insufficiently prejudicial to Plaintiff to
require a new trial. There is no evidence that any of the other jurors saw, or
had any discussions about, Juror 5’s tweets. Moreover, nothing in the plain
language of Juror 5’s tweets discusses any facts specific to this case or the
parties involved. Thus, it cannot be said that the trial court abused its
discretion in concluding that Juror 5 misinterpreted the scope of the trial
court’s instruction not to post about his jury service and that he did not
intentionally violate the court’s order. While Juror 5’s tweets are potentially
offensive on a number of levels, the trial court acted within its discretion to
interview Juror 5, assess his credibility and, in doing so, deny Plaintiff’s
motion for a new trial based thereon.

With
regard to whether Juror 5’s tweet that “[e]veryone is so money hungry that
they’ll do anything for it” demonstrates that he was biased against Plaintiff,
the trial court clearly credited Juror 5’s testimony that the “money hungry”
post was not about Plaintiff or the trial in this case. More importantly,
during voir dire, Juror 5 expressed similar opinions that some people
sue “just for the money” or for “dumb reasons,” and that there were probably
more frivolous lawsuits than there should be.2 Thus, Juror 5’s mid-trial tweet that
“everyone is so money hungry” is consistent with the views he had expressed in voir
dire — hence, no argument can be made that there was any prejudice to
Plaintiff based on this tweet.

In
addition to the arguments with respect to Juror 5’s tweeting, Plaintiff
contends that she is entitled to a new trial because Juror 5 lied during voir
dire by failing to disclose a recent accident involving him and his father.
Defendant contends that Plaintiff is not entitled to a new trial because
Plaintiff cannot establish that Juror 5’s nondisclosure was material, that
Juror 5 concealed this information, or that Plaintiff’s counsel acted
diligently to discover this information during voir dire.

For
a juror’s nondisclosure of information during voir dire to warrant a new
trial, the complaining party must establish 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’s lack of diligence. De La
Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995). Under De La Rosa,
the burden is on the moving party to prove entitlement to a new trial on the
basis of juror nondisclosure. Beyel Bros., Inc. v. Lemenze, 720 So. 2d
556, 557 (Fla. 4th DCA 1998).

Under
the first prong of De La Rosa, “the complaining party must establish not
only that the nondisclosed matter was ‘relevant’ — as all prior litigation
history is — but also that it is ‘material to jury service in the case.’ ” Roberts
v. Tejada, 814 So. 2d 334, 339 (Fla. 2002). There is no “bright line” test
for determining materiality, and thus “materiality must be based on the facts
and circumstances of each case.” Garnett v. McClellan, 767 So. 2d 1229,
1230 (Fla. 5th DCA 2000) (citing Leavitt v. Krogen, 752 So. 2d 730 (Fla.
3d DCA 2000)). “Omitted information has been considered relevant and material
where it implies a bias or sympathy for the other side which in all likelihood
would have resulted in the use of a peremptory challenge.” McCauslin v.
O’Conner, 985 So. 2d 558, 561 (Fla. 5th DCA 2008).

Here,
the record is insufficient to establish that Juror 5’s nondisclosure of the
accident with his father was material. If Juror 5 was involved in an automobile
accident that occurred a week before trial, and the accident involved injuries
and/or involved someone making a claim or filing a lawsuit, such information
would clearly be material in the context of a personal injury case arising out
of an automobile accident. However, the only information on the record is that
Juror 5 and his father “got into an accident” on May 2, 2014, and that his
father “got the court order” during the trial of Plaintiff’s case, which
coincided with Juror 5’s tweet that “[e]veryone is so money hungry that they
will do anything for it.” It is unclear, however, whether the accident involved
an automobile, a golf cart, a boat, or something else, whether there were any
injuries, minor or serious, who was at fault, what were the damages, and what
was the substance of the court order Juror 5’s father received.

At
the hearing on the motion for a new trial, the trial court acknowledged the
“possibility that [Juror 5] made that comment because the accident was so
minor, you know, maybe just a tap or something like that, that he was shocked
when his father got notice of a lawsuit[.]” The trial court further queried
whether Juror 5 could have interpreted her question to say “has anybody been
involved in an accident involving injuries? And that he didn’t feel that the
accident that he and his father were in was similar to this case, because this
case involved injuries.” This Court cannot presume that the facts and
circumstances of the May 2 accident are analogous to the facts and
circumstances of the instant case when no support for such a conclusion exists
on the record. Because the trial court questioned Juror 5 extensively, the
trial court was in the best position to determine both the credibility of Juror
5 and any prejudice to Plaintiff as a result thereof.

In
addition, during the juror interview, Plaintiff did not seek to ask any
questions of Juror 5 about this accident or about why he did not disclose it in
voir dire. Instead, after the trial court had asked all of its questions
of Juror 5, Plaintiff asked the court, and it agreed, to pose two or more
additional follow-up questions unrelated to the accident. In any event,
Plaintiff’s counsel conceded at the hearing on the motion for a new trial that
he was not seeking reexamination of Juror 5 on the nondisclosure issue. Thus,
without more information about the facts of the undisclosed accident, Plaintiff
cannot meet her burden to establish the materiality prong of De La Rosa.

Under
the second prong of De La Rosa, “information is considered concealed for
purposes of the three part test where the information is ‘squarely asked for’
and not provided.” Birch ex rel. Birch v. Albert, 761 So. 2d 355, 358
(Fla. 3d DCA 2000). “Finally, the third prong addresses whether the cause of
the failure to elicit the information was due to the fault of the complaining
party.” Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 429 (Fla.
4th DCA 2014). Because there is insufficient record evidence to establish the
first prong of De La Rosa, we decline to address the second and third.

For
the foregoing reasons, we affirm the final judgment and the order denying
Plaintiff’s motion for new trial.

Affirmed.
(GROSS and LEVINE, JJ., concur.)

__________________

1“Twitter
is a real-time information network that lets people share and discuss what is
happening at a particular moment in time through the use of ‘tweets,’ updates
composed of 140 characters or less. The service allows users either to Direct
Message (DM) specific individuals or to use ‘twitter posts’ accessible to the
public. The process of posting messages on Twitter is commonly referred to as
‘tweeting.’ ” Dimas-Martinez v. State, 385 S.W. 3d 238, 243 n.3 (Ark.
2011) (citation omitted).

2In
addition to Juror 5, at least two other jurors, who Plaintiff did not seek to
have stricken from the panel, had expressed similar views during voir dire.

* *
*