ROSA J. BERNAL AND JOSE M. BERNAL, APPELLANTS,
v.
DONALD H. LIPP, D.P.M. AND DONALD H. LIPP, D.P.M., P.A. APPELLEES
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A medical negligence plaintiff appeals a defense verdict, claiming the jury was improperly constituted because a juror failed to disclose prior litigation experience during voir dire. The court reversed, finding the juror's non-disclosure of a prior personal injury lawsuit was material and violated the three-part test for juror misconduct, entitling plaintiffs to a new trial.
The court held that all three prongs of the test for reversal due to juror non-disclosure were met: (1) the prior litigation was material because a juror's failure to disclose prior experience as a defendant in a personal injury case would be material to a plaintiff in a personal injury case; (2) the information was concealed by the juror despite direct questioning; and (3) plaintiffs' counsel exercised due diligence in making careful inquiry during voir dire.
[1] A new trial is warranted when a juror fails to disclose material information during voir dire, the information was concealed, and the failure to discover the concealed fa…
[2] A juror's prior experience as a defendant in a personal injury lawsuit is material information in a subsequent personal injury case.
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Join FLexlaw to unlock all legal intelligence“A case will be reversed because of a juror's nondisclosure of information when the following three-part test is met: '(1) the facts must be material; (2) the facts must be concealed by the juror upon his voir dire examination; and (3) the failure to discover the concealed facts must not be due to the want of diligence of the complaining party.'”
Establishes the governing legal standard for juror non-disclosure that the court applied to this case.
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Join FLexlaw to unlock all legal intelligencePlaintiffs Rosa and Jose Bernal sued Dr. Donald Lipp for medical negligence. During voir dire, plaintiffs' counsel asked potential jurors about prior …
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PER CURIAM.
Plaintiffs Rosa and Jose Bernal appeal an adverse final judgment and assign as error the denial of their motion for new trial. We reverse.
Plaintiffs sued appellee Donald Lipp, alleging medical negligence. During voir dire examination by plaintiffs’ counsel, the potential jurors were asked collectively if they had sued someone or had been sued, or had been a plaintiff or defendant in a lawsuit. For each of the jurors responding affirmatively, plaintiffs’ counsel asked questions to ascertain the particulars. Potential juror Alberto Parejo remained silent and did not indicate that he had been a defendant in any lawsuit. In addition, on the juror questionnaire which Parejo completed, he answered in the negative the question whether he or any member of his family ever had a claim for personal injury made against them. See Fla.R.Civ.P. Form 1.984.
Juror Parejo was a member of the jury, which returned a defense verdict. Subsequent to verdict, plaintiffs learned that juror Parejo had previously been a defendant in a personal injury lawsuit. Plaintiffs moved for a new trial on the basis that the jury had been improperly constituted.
A juror interview was ultimately conducted. See Bernal v. Lipp, 562 So. 2d 848, 849 (Fla. 3d DCA 1990). At that time it was ascertained that juror Parejo had indeed been a defendant in an automobile accident case approximately one year prior to the trial of the instant case. The juror explained that the prior case had been a minor automobile accident which was covered by insurance and had been settled by the insurance company. He explained that he did not interpret either the questionnaire or the oral question as calling for an affirmative answer, given the minor nature of the prior litigation. It is clear that the trial court believed the juror’s explanation was truthful and that there had been no intentional withholding of information at voir dire. The trial court denied the motion for new trial.
The applicable test is:
A case will be reversed because of a juror’s nondisclosure of information when the following three-part test is met: ‘(1) the facts must be material; (2) the facts must be concealed by the juror upon his voir dire examination; and (3) the failure to discover the concealed facts must not be due to the want of diligence of the complaining party.’
Indus. Fire & Casualty Ins. Co. v. Wilson, 537 So. 2d 1100, 1103 (Fla. 3d DCA 1989) (citation omitted).
The test is met in this case. For a plaintiff in a personal injury case, the failure of a juror to disclose that he had been a defendant in a personal injury case one year previously would be material. Smiley v. McCallister, 451 So. 2d 977, 978-79 (Fla. 4th DCA 1984).
As to the second prong of the test, the information was concealed from counsel, as a result of which counsel lost “the right to make an intelligent judgment as to whether a juror should be challenged....” Minnis v. Jackson, 330 So. 2d 847, 848 (Fla. 3d DCA 1976). Since the information was squarely asked for and was not provided, this branch of the test is satisfied. See Skiles v. Ryder Truck Lines, Inc., 267 So. 2d 379, 382 (Fla. 2d DCA 1972), cert. denied, 275 So. 2d 253 (Fla.1973). Although the juror did not intend to mislead plaintiffs’ counsel, the omission nonetheless prevented counsel from making an informed judgment— which would in all likelihood have resulted in a peremptory challenge.
As to the final branch of the test, in this instance the plaintiffs’ counsel made careful and diligent inquiry of each of the jurors regarding any prior experience in litigation, whether as a party or otherwise. Cf. Taylor v. Public Health Trust of Dade County, 546 So. 2d 733, 734 (Fla. 3d DCA) (where juror gave ambiguous answer and no further inquiry was made on voir dire, there was insufficient due diligence shown to warrant new trial), review denied, 557 So. 2d 867 (Fla.1989).
Reversed and remanded for new trial.
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Citator
Cited By (20 total)
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DE LA Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995)…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 S…1 / 2
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Roberts v. Francisco Tejada, M.D., 814 So. 2d 334 (Fla. 2002)…(in which the jury had rendered a verdict in favor of the defendant), this Court found the challenged juror’s extensive prior litigation history — predominantly as a defen [*340] dant — to be material, acknowledging similarities with Bernal v. Lipp, 580 So. 2d 315 (Fla. 3d DCA 1991): 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 invo…1 / 3
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Ethelene Garnett v. McCLELLAN, 767 So. 2d 1229 (Fla. 5th DCA 2000)…ze with de [*1231] fendants or develop a bias against legal proceedings in general and the omitted information prevented counsel from making an informed judgment which in all likelihood would have resulted in a peremptory challenge); Bernal v. Lipp, 580 So. 2d 315 (Fla. 3d DCA 1991) (plaintiff entitled to a new trial where juror failed to disclose that he had been a defendant in a personal injury case one year previously); Industrial Fire & Cas. Ins. Co. v. Wilson, 537 So. 2d 1100 (Fla. 3d DCA 1989) (defendan…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Decker v. State, 267 So. 2d 379 (Fla. 2d DCA 1972)
- Reasbeck v. State of Fla. ex rel. Jessie Wallace, Jr., 275 So. 2d 253 (Fla. 1973)
- Indus. Fire & Cas. Ins. Co. v. Wilson, 537 So. 2d 1100 (Fla. 3d DCA 1989)
- Frederick v. Frederick, 267 So. 2d 379 (Fla. 4th DCA 1971)
- Minnis v. Jackson, 330 So. 2d 847 (Fla. 3d DCA 1976)
- Smiley v. McCALLISTER, 451 So. 2d 977 (Fla. 4th DCA 1984)
- Eve Taylor v. Pub. Health Tr. OF Dade Cnty., 546 So. 2d 733 (Fla. 3d DCA 1989)
- X.C. v. State, 562 So. 2d 848 (Fla. 3d DCA 1990)