Appellant, Hillsboro Management, LLC, d/b/a Living Legends Retirement Center (“Hillsboro”), appeals a final judgment in favor of appellee Karen Pagono, as personal representative of the Estate of Frances Tremblay, for negligence. The final judgment awarded bоth compensatory and pu
Frances Tremblay, a 98-year-old woman, was admitted to Living Legends Retirement Center by her granddaughter. Even though the stаff noted on her admission chart that Tremblay did not use or need any walking assistance, on the very first day of residence she fell and she experienced multiple falls thereafter when she was not attended by the staff. In all she experienced nineteen falls in the twenty-six days she wаs in the facility. She suffered significant injuries, although there was a dispute as to whether these injuries caused her death. After her death, Pagono, Tremblay’s granddaughter, instituted a negligence action against Hills-boro for failing to properly supervise Tremblay and for violating her statutory rights pursuant to sections 429.297 and 429.298, Florida Statutes. The testimony at trial showed many instances of failing to report Tremblay’s condition, failing to supervise her when the staff knew she was at risk of falling, and other even more intentional acts directed at her. For purposes of the issues addressed in this appeal, we need not delve further into the factual predicate for the liability and damage awards.
At trial, the prospective jurors were asked whether they had ever been involved in the trial of a lawsuit, either as a plaintiff, a defendant, or a witnеss. Juror R.F. disclosed that his daughter had been involved in an accident in the 1980s resulting in litigation, and his wife was also involved. He stated that nothing about that case would affect his ability to serve in this case. Later, in voir dire, Juror R.F. was again questioned about the case, and he again assured the attorneys that the case would not affect his service as a juror in this case.
Hillsboro’s attorney also asked the jury about litigation. He said:
You were asked, folks, about litigation, particularly medical malpractice, claims against nursing homes, automobile acсidents. But let me ask that question about your involvement in litigation in a more expansive and broader definition of litigation, which can include problems with your credit card company, bankruptcy, landlord/tenant problems, slip and falls, commercial disputes, contract disputes, probate litigation, maybe a claim where there is no lawsuit or lawyer involved, but just you against somebody else.
Does anybody have ... any other litigation that hasn’t been disclosed already?
Several other potential jurors offered additional litigation experienсe at that point. Hillsboro’s attorney then specifically addressed Juror R.F., asking, “[Juror R.F.], the only litigation involving your family was the lawsuit involving your youngest daughter; is that correct sir?” Juror R.F. replied, 'Tes.” Eventually Juror R.F. was chosen as part of the jury panel.
After the jury came back with a verdict оf $145,828.05 in past medical expenses, $750,000 in non-economic damages, and $1.5 million in punitive damages, Hillsboro filed a motion for new trial based upon several issues and also alleging juror misconduct, because Juror R.F. had made materially false statements in voir dire regarding his litigation histоry. Hillsboro listed twelve actions filed in Broward County involving a person with the same
At the hearing, Pagono opposed the motion, suggesting that several of the lawsuits may not have involved the juror, and most were tоo remote in time to be material. The trial court denied the motion without granting a juror interview. It also denied the motion for new trial as to the substantive issues raised. As well, it denied Hillsboro’s motion for remittitur as to both compensatory and punitive damages. This appeal follоws.
De La Rosa v. Zequeira,
First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed thе information during questioning. Lastly, that the failure' to disclose the information was not attributable to the complaining party’s lack of diligence.
Id. at 241 (citing Skiles v. Ryder Truck Lines, Inc.,
“No ‘bright line’ test for materiality has bеen established and materiality must be based on the facts and circumstances of each case. Leavitt v. Krogen,752 So.2d 730 (Fla. 3d DCA 2000). Nondisclosure is considered material if it is substantial and important so that if the facts were known, the defense may have been influenced to peremptorily challenge the juror from the jury.”
Id. (quoting Garnett v. McClellan,
Finally, “[t]he ‘due diligence’ test requires that counsel provide a sufficient explanation of the type of information which potential jurors are being asked to disclose, particularly if it pertains to an area about which an average lay juror might not otherwise have a working understanding.” Roberts,
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. See Sterling,
[W]here the information submitted by appellant was sufficient to show reasonable grounds that the jurors identified in the motion concealed material information during voir dire, the trial court should have granted appellant’s request to interview them. Then, depending upon the outcome of the juror interviews and appellant’s ability to establish that a juror’s nondisclosure of prior litigation history during voir dire is relevant and material to jury service in this case, and not attributable to appеllant’s lack of diligence, the court could determine whether appellant is entitled to a new trial. See De La Rosa v. Zequeira,659 So.2d 239 , 241 (Fla.1995); Roberts,814 So.2d at 339-40 .
Consistent with Sterling, we hold that the information submitted regarding Juror R.F., as well as a review of the transcript of voir dire and the affidavit of the trial attorney, collectively provided a reasonаble ground for a juror interview, particularly in this case where Pagono disputes the connection between the litigation uncovered and the juror. Moreover, the court’s analysis of the De La Rosa factors of materiality, concealment, and due diligence requires the cоurt to weigh all the facts in the case. The court cannot properly assess the requirements when the parties dispute the juror’s involvement in the litigation uncovered in the records search. We thus reverse the denial of new
We also distinguish this court’s recent opinion in Duong v. Ziadie, — So.3d -,
We have seen a growth of post-trial juror interview requests based upon juror non-disclosure of prior litigation information. In Roberts, the court specifically disapproved of the Third District’s holding that public records must be consulted аt the time of jury selection or the issue of juror non-disclosure of litigation history would be waived. Roberts,
Our technology has come a long way in the past ten years since Roberts was decided. All counties now have their official public records online, and court files are also online. A paralegal in the courtroom can most likely search the public records of each juror as the juror is сalled during voir dire. While such searches are not perfect and would be able to pull records only in the county in which the case is being tried, it could result in catching obvious non-disclosures, such as the case here. The time may have come to rethink how the courts handlе juror non-disclosure so as to prevent so much litigation over the issue and so many retrials of cases to the detriment of the entire judicial system.
As we are reversing for reconsideration of the motion for new trial based upon juror interview, which may result in the