WILLIAM HUETHER, III, M.D., AND ADVENTIST HEALTH SYSTEM/SUNBELT, INC. D/B/A ADVENTHEALTH ALTAMONTE SPRINGS F/K/A FLORIDA HOSPITAL ALTAMONTE, HUETHER, III, M.D.

v.

VALERIA BARONI

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________ Case No. 5D2023-2440 LT Case No. 2019-CA-2972 _____________________________ WILLIAM HUETHER, III, M.D., and ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a Adventhealth Altamonte Springs f/k/a Florida Hospital Altamonte, Petitioners, v. VALERIA BARONI, Respondent. _____________________________ Petition for Certiorari Review of Order from the Circuit Court for Seminole County. Susan Stacy, Judge. Dinah S. Stein, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Craig S. Foels, of Estes, Ingram, Foels & Gibbs, P.A., Maitland, for Petitioners. Landis V. Curry, III, of Paul Knopf Bigger, Tampa, for Respondent. August 20, 2024

SOUD, J.

I.

Respondent Valeria Baroni sued Huether and Florida Hospital alleging she suffered damages that resulted from medical malpractice. After more than three years of litigation, a five-day jury trial was held wherein Huether and Florida Hospital prevailed. Five days after the defense verdict, Baroni filed a motion seeking a new trial because of alleged concealment of information by a juror during voir dire and his further misconduct during trial. Specifically, during jury selection, the juror at issue, J.L., was asked by the trial court, “have you been involved in a lawsuit before?”1 J.L. responded, “Never.” This answer is devoid of equivocation or uncertainty. It is clear and unambiguous—just as was the trial court’s question to him. Baroni alleged in her motion for new trial that J.L. was involved in no fewer than five prior litigations. Two of the prior cases were civil cases in which J.L. was the named defendant. One of these cases was filed in 2017 but was voluntarily dismissed without prejudice because J.L. filed for bankruptcy. His bankruptcy case was litigated for years until November 2022—just two months before jury selection in the case sub judice. J.L. also was the defendant in two criminal cases filed against him—one 1 J.L. was prospective juror number 20 (out of 40) during voir dire. As a result, he heard the same question presented to each of the nineteen jurors before him. The trial court’s phrasing of the question varied slightly when posed to each juror individually. For example, the trial court would phrase the question as: “have you ever been sued or have you ever sued anyone?”; “have you been sued or have you sued anyone?”; “have you been sued or did you sue anyone?”; and the like. Thus, the trial court’s question to J.L. was straightforward.

II.

The discretionary common law writ of certiorari is an “extraordinary remedy,” providing an appellate court “the prerogative to reach down and halt a miscarriage of justice where no other remedy exists.” See Adventist Health Sys./Sunbelt, Inc. v. Machalek, 383 So. 3d 534, 536–37 (Fla. 5th DCA 2023) (quoting Univ. of Fla. Bd. of Trs. v. Carmody, 372 So. 3d 246, 251–52 (Fla. 2023)). However, “[t]he writ never was intended to redress mere legal error,” see id. at 537, and certiorari is not available simply because an order under review is not otherwise appealable. See Abbey v. Patrick, 16 So. 3d 1051, 1053–54 (Fla. 1st DCA 2009). Here, the petitioners must demonstrate that the challenged order (1) departs from the essential requirements of law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post-judgment appeal. See Dep’t of Child. & Fams. v. State, 380 So. 3d 1263, 1267 (Fla. 5th DCA 2024). The last two requirements, combined into the concept of “irreparable harm,” are jurisdictional and must be found to exist before we

A.

If the order requiring J.L. to be interviewed departs from the essential requirements of law, irreparable harm would exist. Initially, we note that Florida law has long recognized that post-verdict juror interviews are strongly disfavored and should be rare. See Child.’s Med. Ctr., P.A. v. Kim, 221 So. 3d 664, 668 (Fla. 4th DCA 2017). “[T]he sanctity of the jury process as well as the privacy rights of the jurors themselves should be closely guarded and protected.” Id. (emphasis added) (quoting Sterling v. Feldbaum, 980 So. 2d 596, 599 (Fla. 4th DCA 2008)). In doing so, Florida law protects jurors from over-reaching and discontented counsel that may seek to badger them following a verdict. Id. As a result, Florida appellate courts, including this Court, have repeatedly held that certiorari is a proper vehicle to review orders requiring a post-verdict juror interview. See e.g.: State v. Monserrate-Jacobs, 89 So. 3d 294, 296 (Fla. 5th DCA 2012); Orange County v. Piper, 585 So. 2d 1182 (Fla. 5th DCA 1991); Hannon v. Shands Teaching Hosp. & Clinics, Inc., 56 So. 3d 879 (Fla. 1st DCA 2011); Pesci v. Maistrellis, 672 So. 2d 583, 585 (Fla. 2d DCA 1996); Parra v. Cruz, 59 So. 3d 211 (Fla. 3d DCA 2011); Naugle v. Philip Morris USA, Inc., 133 So. 3d 1235 (Fla. 4th DCA 2014).2 One lone case from the First District Court of Appeal parts ways with this precedent. In Laycock v. TMS Logistics, Inc., 209 So. 3d 627, 629 (Fla. 1st DCA 2017), the esteemed majority, in its reasoned and artful answer to “the more complicated question” of whether harm “to jurors and the sanctity of their process” invokes the certiorari jurisdiction of the court, answered in the negative in dismissing the petition. We respectfully disagree—both with the question as phrased and the answer thereto.

2 We are not aware of any case in which the Sixth District Court of Appeal has addressed this question.

B.

That said, the trial court’s order requiring J.L.’s interview did not depart from the essential requirements of law.

3 See infra n.7.

4 See supra n.1. 5 “Overall, ‘[i]nformation is considered concealed . . . where the information is “squarely asked for” and not provided.’” Taylor v.

III.

Accordingly, as the trial court did not depart from the essential requirements of law and properly required the postverdict interview of the offending juror, the petition is DENIED. In denying this petition, our opinion is limited to permitting the interview of the offending juror.⁷ We express no opinion as to the substantive merits of Baroni’s motion for new trial.

Magana, 911 So. 2d 1263, 1268 (Fla. 4th DCA 2005) (quoting Birch v. Albert, 761 So. 2d 355, 358 (Fla. 3d DCA 2000)).⁶ It is noteworthy that Justice Overton dissented in De La Rosa, concluding: Before a party to a lawsuit should be denied the benefit of a favorable verdict and forced to endure the time and expense of a new trial based on juror misconduct, the trial court should, at a minimum, interview the juror, with the attorneys present, and then make a finding of whether the conduct was intentional and whether any party was prejudiced. De La Rosa, 659 So. 2d at 242 (Overton, J., dissenting). While we do not suggest that a jury interview is required before ruling on a motion for new trial such as this, the reasonableness of the trial court’s approach is supported by Justice Overton’s view.⁷ If the trial court determines that J.L. willfully and deliberately engaged in misconduct that was sufficiently prejudicial to require a new trial, the trial judge would be within

BOATWRIGHT and MACIVER, JJ., concur.

her discretion to take the rare and extraordinary step of commencing contempt proceedings against him. “Concealment or misstatement by a juror upon a voir dire examination is punishable as a contempt if its tendency and design are to obstruct the processes of justice.” Clark, 289 U.S. at 10. A talesman when accepted as a juror becomes a part or member of the court. The judge who examines on the voir dire is engaged in the process of organizing the court. If the answers to the questions are willfully evasive or knowingly untrue, the talesman, when accepted, is a juror in name only. His relation to the court and to the parties is tainted in its origin; it is a mere pretense and sham. Id. at 11 (citation omitted); see also DeMartin v. State, 188 So. 3d 87, 92 (Fla. 4th DCA 2016) (quoting Clark, 289 U.S. at 10). When prospective jurors make misstatements or conceal information from the court and counsel, such misconduct is (i) corrosive to the very core of the judicial system and (ii) highly prejudicial to parties who would be forced to endure the considerable attorney’s fees and costs involved in retrial—particularly in a medical malpractice case such as this. Such conduct simply cannot—and will not—be accepted by the courts of this State.