42
Fla. L. Weekly D1403aTop of Form

Civil
procedure — Torts — Medical malpractice — Trial court departed from
essential requirements of law when it granted plaintiff’s motion for post-trial
juror interviews based on alleged failure of two jurors to disclose litigation
history in their responses to jury questionnaire where plaintiff failed to establish
relevance and materiality, concealment, and due diligence, the three elements
necessary to warrant post-trial interviews

CHILDREN’S MEDICAL CENTER, P.A.,
THEODORE MORRISON, M.D., KENNETH BUDOWSKY, M.D., JACINTA MAGNUS, M.D., and
NANCY CHIANG, M.D., Petitioners, v. JAKYUNG KIM and YOOCHAN KIM, as parents and
next friend of BABY SEAHYUN KIM, a minor, Respondents. 4th District. Case No.
4D16-4319. June 21, 2017. Petition for writ of certiorari to the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez Powell,
Judge; L.T. Case No. 09-055893 (03). Counsel: Dinah Stein and Erik P.
Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Michael A.
Petruccelli and Steven A. Osher of Petruccelli & Osher, P.A., Fort Lauderdale,
for petitioners. Alan Goldfarb and David C. Appleby of Alan Goldfarb, P.A.,
Miami, for respondents.

(MAY, J.) The defendants in a
medical malpractice action seek certiorari review of a post-trial order
granting juror interviews following a defense verdict. The trial court granted
the plaintiffs’ motion based on the alleged failure of two jurors to disclose
litigation history in their responses to the jury questionnaire. The defendants
argue the trial court departed from the essential requirements of the law
because the plaintiffs failed to establish the three requirements for granting
juror interviews. We agree, grant the petition, and quash the order.

The plaintiffs filed a medical
malpractice action against the defendants, alleging a failure to diagnose their
infant son’s skull fracture and brain bleed that were allegedly related to his
birth. Their child was delivered with the assistance of a vacuum extraction
device. Two weeks after his birth, the child experienced a severe brain bleed.
The child underwent a craniotomy, but still suffered permanent brain-related
and neurological injuries. The plaintiffs alleged the four defendant
pediatricians should have diagnosed the child’s condition. Following a
three-week trial, the jury returned a defense verdict.

The plaintiffs moved to interview
three jurors: L.H., E.T., and the alternate.1 They alleged L.H. and E.T. failed to
disclose their litigation history in responding to the following question on
the jury questionnaire.

Have you
or any family member ever been sued or have you sued someone else? (This
includes suits which were settled after being filed.) If so, please explain.

Jurors L.H. and E.T. both answered
“No” to the question. However, public records searches revealed that two
individuals with the same names (or similar marital names) had previous
encounters with the legal system. Records revealed that L.H. sought to register
a restraining order against her ex-husband in California in 2008. The docket
characterized the nature of the case as “domestic violence with children.”

The plaintiffs asserted that the
concealment of that information provided grounds to interview L.H. because “[a]
salient, if not dispositive issue” in their case was whether the proximate
cause of their child’s injury was “child abuse or so-called ‘non-accidental
trauma.’ ” The plaintiffs claimed the defendants theorized pre-trial that the
child’s injury was caused by abuse. They cited the defense expert’s deposition
testimony. They noted the trial court had ruled in limine that the expert could
not testify at trial that the child’s injuries resulted from a drop or knock on
the head.

Records also revealed that E.T. was
the respondent in numerous “domestic violence” actions. The most recent
injunction was entered against E.T. in 2001. And a 2015 stalking case had been
dismissed.2

The plaintiffs alleged the alternate
“may have significant information with respect to discussions amongst the
jurors contrary to this court’s instructions.”

Plaintiffs’ counsel submitted two
affidavits, attesting to his public records search, and that the individuals in
those records were L.H. and E.T. The affidavits did not state that he
would have exercised peremptory strikes on L.H. and E.T. had the information
been disclosed.

The plaintiffs also moved for a new
trial, arguing juror misconduct, and the verdict was contrary to the weight of
the evidence. The defendants responded that the plaintiffs failed to
demonstrate entitlement to juror interviews because the alleged nondisclosures
were not material, the information had not been concealed, and plaintiffs’
counsel was not diligent in his inquiry during voir dire.

At the hearing on the motion for
juror interviews, plaintiffs’ counsel argued he would have used his remaining
peremptory challenges on L.H. and E.T. had he known about the jurors’ domestic
violence cases — assuming the cases involved a child. The defendants argued
the prior litigation was too remote in time and it was not clear that the
individuals in those cases were the two jurors. The trial court reserved
ruling.

A few weeks later, the trial court
granted interviews of jurors L.H. and E.T., but denied an interview of the
alternate juror. From this order, the defendants petitioned this court.

The defendants argue the trial court
departed from the essential requirements of law by granting the interviews when
the plaintiffs failed to demonstrate the three elements necessary to warrant
post-trial juror interviews: materiality, concealment, and diligence. See De
La Rosa v. Zequeira, 659 So. 2d 239, 241 (Fla. 1995). The plaintiffs
respond that they satisfied all three requirements, and the petition should be
denied.

Certiorari has been used to review
orders allowing post-trial juror interviews. See, e.g., Naugle v. Philip
Morris USA, Inc., 133 So. 3d 1235, 1236 n.1 (Fla. 4th DCA 2014); Parra
v. Cruz, 59 So. 3d 211, 212 (Fla. 3d DCA 2011).

“A party who believes that grounds
for legal challenge to a verdict exist may move for an order permitting an
interview of a juror or jurors to determine whether the verdict is subject to
the challenge.” Fla. R. Civ. P. 1.431(h). Nevertheless, “[p]ost-trial juror
interviews should be ‘rarely granted and the sanctity of the jury process as
well as the privacy rights of the jurors themselves should be closely guarded
and protected.’ ” Sterling v. Feldbaum, 980 So. 2d 596, 599 (Fla. 4th
DCA 2008) (citation omitted). Rule 1.431(h) “is a shield to prevent disgruntled
parties and attorneys from harassing jurors after a verdict.” Naugle,
133 So. 3d at 1238.

“Although generally post-verdict
juror interviews are disfavored, where there is adequate proof that a juror may
have failed to disclose material information on voir dire, a party is entitled
to conduct an interview of the juror.” Hillsboro Mgmt., LLC v. Pagono,
112 So. 3d 620, 624 (Fla. 4th DCA 2013). To be entitled to interview a juror,
the movant must satisfy the De La Rosa three-part test. Pembroke
Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 427 (Fla. 4th DCA 2014);
see also Penalver v. Masomere, 178 So. 3d 533, 536 (Fla. 3d DCA
2015) (quashing order granting juror interview where one prong of De La Rosa
test was not met).

The three-part test requires proof
that:

(1) The
concealed information was 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.

McGruder, 137 So. 3d at 427 (emphasis added). The trial court must
analyze the “totality of the circumstances to determine whether a juror
interview . . . is warranted.” Pagono, 112 So. 3d at 625.

1. Relevance & Materiality

The plaintiffs needed to show that
L.H.’s and E.T.’s prior litigation history was relevant and material to the
case. “Nondisclosure is considered material if it is substantial and important
so that if the facts were known, [the moving party] may have been influenced to
peremptorily challenge the juror from the jury.” Roberts v. Tejada, 814
So. 2d 334, 341 (Fla. 2002) (citation omitted).

Assuming the plaintiffs made an
initial showing the litigation history belonged to these jurors and that it was
material, their counsel’s questioning of prospective jurors undermines that
showing. In determining materiality, courts may look to a party’s questioning
and acceptance of jurors with litigation histories similar to the challenged
jurors. See Duong v. Ziadie, 125 So. 3d 225, 228 (Fla. 4th DCA 2013).

Here, it is not clear that the
litigation histories belonged to the two jurors. Even so, most of the history
was remote, some occurring more than eight years prior, and were not seemingly
related to the subject of the instant case — medical malpractice. It was
apparent that plaintiffs’ counsel was not concerned with either prior
litigation, in general, or child abuse, in particular, during voir dire, by his
questioning of the other jurors.

Out of more than 70 prospective
jurors, 17 people answered affirmatively to the litigation history question.
Most listed civil actions for money damages such as those arising from personal
injuries, car accidents, medical malpractice, and property damage. One listed a
foreclosure action. Two answered “Yes” without elaborating on the nature of the
litigation.

One prospective juror even noted a
domestic violence incident in her family — in response to a different question
on the questionnaire — but plaintiffs’ counsel did not ask a single follow-up
question concerning that response. Plaintiffs’ counsel asked one prospective
juror during voir dire whether she had “been involved in any kind of case or a
lawsuit.” That juror answered “No,” both to counsel and in her response on the
questionnaire. Thereafter, plaintiffs’ counsel did not question any other
prospective juror about prior litigation history, including those who answered
“Yes” to the question concerning whether they had been sued.

Although L.H. answered “No” to the
question, she voluntarily shared her own experience with a vacuum-assisted
birth in response to a general question directed at the venire panel. Despite
her own experience, L.H. said she would have “no issues” serving as a juror on
the case.

Because plaintiffs’ counsel failed
to ask follow-up questions about prior litigation, it is unlikely he would have
exercised peremptory strikes against L.H. and E.T. On this record, we conclude
“the attorney’s post-verdict insistence that he would have challenged these two
jurors was not genuine.” Pagono, 112 So. 3d at 625 (citing Duong,
125 So. 3d at 228). The plaintiffs failed the relevance and materiality
requirement.

2. Concealment

In the second part of the test, the
plaintiffs must establish concealment. To constitute concealment, a juror’s
nondisclosure need not be intentional. Pagono, 112 So. 3d at 624.
Instead, concealment exists where a juror gives an inaccurate response and “the
voir dire question was straightforward and not reasonably susceptible to
misinterpretation.” Id. (emphasis added) (quoting Rodgers v.
After Sch. Programs, Inc., 78 So. 3d 42, 45 (Fla. 4th DCA 2012)).

“A juror’s response to a question
cannot constitute concealment . . . ‘where the juror’s response . . . about
litigation history is ambiguous, and counsel does not inquire further to
clarify that ambiguity.’ ” Rodgers, 78 So. 3d at 45 (quoting Gamsen
v. State Farm Fire & Cas. Co., 68 So. 3d 290, 294 (Fla. 4th DCA 2011)).

Here, the circumstances indicate
that litigation question was not straightforward and was reasonably subject to
misinterpretation by prospective jurors. The question asked:

Have you
or any family member ever been sued or have you sued someone else? (This
includes suits which were settled after being filed.) If so, please explain.

(Emphasis added). This question
narrowly framed the type of legal activity to which it referred. By its very
wording, it excluded criminal, and other legal matters. Indeed, most of the
positive responses to the question volunteered information about civil cases
involving damages. None of the prospective jurors listed a criminal case, and
only one juror mentioned a domestic violence case in response to another
question.

The Third District addressed a
strikingly similar question in Tricam Indus., Inc. v. Coba, 100 So. 3d
105, 112 (Fla. 3d DCA 2012), quashed on other grounds, Coba v. Tricam
Indus., Inc., 164 So. 3d 637 (Fla. 2015). There, like here, the challenged
juror answered a similar litigation history question in the negative despite
having litigation history. Id. Given “the context in which the trial
court asked the jurors about their litigation history” and because the
responses from the other jurors all concerned personal injury suits, the Third
District held “the jurors may not have fully understood the nature of the
inquiry.” Id. at 112-13.

Similarly, it does not appear that
plaintiffs’ counsel “squarely asked” L.H. and E.T. about their experience with
all legal matters, including domestic violence or child abuse. McGruder,
137 So. 3d at 429 (“The concealment prong is met when the juror is ‘squarely
asked for’ the information and the juror fails to speak the truth.” (Citation
omitted)). This conclusion does not mean, as plaintiffs contend, that parties
will no longer be able to rely on responses to jury questionnaires. What it
does mean is that all lawyers will need to be diligent, clear, and precise in
questioning prospective jurors concerning their litigation history.

Here, the question was generic and
imprecise. “A differently phrased question may well have resulted in
disclosure.” Rodgers, 78 So. 3d at 46. The plaintiffs failed to prove
concealment given the wording of this question and the lack of follow-up questioning.

3. Due Diligence

The third part of the test for juror
interviews is “whether the cause of the failure to elicit the information was
due to the fault of the complaining party.” McGruder, 137 So. 3d at 429.
As discussed above, the plaintiffs did not satisfy the diligence prong because
their counsel failed to “ ‘provide a sufficient explanation of the type of
information which potential jurors are being asked to disclose.’ ” Pagono,
112 So. 3d at 624 (citation omitted). Plaintiffs’ counsel did not articulate to
the prospective jurors that the litigation history question sought disclosure
of all prior legal matters; or, more specifically, if any of them had been
involved in domestic violence or child abuse.

The lack of diligence is even more
evident in the delay in researching the litigation history of the prospective
jurors. In this case, the plaintiffs had ten days between the conclusion of
their voir dire and the start of defendants’ voir dire to run a public records
search. The plaintiffs had an additional eleven days between the close of
evidence and closing argument to conduct the search. Instead, it was not until
after the jury returned an unfavorable verdict that plaintiffs undertook their
investigation.

While the diligence test does not
require counsel to discover the concealed facts prior to the return of a
verdict, the Florida Supreme Court has said that counsel should check juror
records without delay “[w]here possible.” Roberts, 814 So. 2d at 344-45.
And, nothing in Roberts prevents consideration of trial counsel’s
failure to run a juror’s litigation history as one of several factors under a
due diligence inquiry. Tricam Indus., 100 So. 3d at 114, quashed on
other grounds, Coba, 164 So. 3d 637 (quashing portion of decision analyzing
inconsistent verdict); see also Pagono, 112 So. 3d at 625 (suggesting
that it was time “to rethink how the courts handle juror non-disclosure,” and
suggesting that due to online availability of public records, searches could be
conducted during voir dire).

To preserve the continued viability
of the right to a jury trial, we reiterate “[p]ost-trial juror interviews
should be ‘rarely granted and the sanctity of the jury process as well as the
privacy rights of the jurors themselves should be closely guarded and
protected.’ ” Sterling, 980 So. 2d at 599. The plaintiffs were unable to
sustain their burden of satisfying the three-part test of De La Rosa. We
therefore grant the petition and quash the order allowing the interview of the
two jurors.

Petition granted; order quashed. (GROSS and DAMOORGIAN, JJ., concur.)

__________________

1Initials have been used to protect
the names of the jurors.

2Although the plaintiffs discovered
other prior litigation involving L.H. and E.T., including evictions, traffic tickets,
PIP lawsuits, and small claims, in their response they contend only the
domestic violence cases are relevant and material to the case.

* * *