Opinion
Case No. 3D03-918.
Opinion filed June 16, 2004.
An Appeal from the Circuit Court for Miami-Dade County, Barbara S. Levenson, Judge, Lower Tribunal No. 97-6376.
Genovese Joblove Battista, and Peter W. Bellas, and Richard Sarafan, and Craig P. Rieders, and Melanie Cherdack, for appellants.
Clarke Silverglate Campbell Williams Montgomery, and Craig Salner; and Carlton Fields, and John R. Blue, and Sylvia H. Walbolt, and Alina Alonso, for appellees.
Before GODERICH, FLETCHER, and RAMIREZ, JJ.
Isabel Gonzalez, and her husband, Carlos Gonzalez, appeal the trial court's entry of final judgment and the denial of their motions for rehearing and new trial. We reverse the defense verdict and remand for a new trial because the trial court incorrectly precluded the ability of the parties to exercise a juror backstrike and improperly limited the number of treating physicians witness testimony at trial.
This case arises from the Gonzalezes' medical malpractice suit filed against appellee Javier A. Gutierrez, M.D., Isabel Gonzalez's primary doctor, as well as appellee Rebecca Martinez, M.D., the doctor who the couple allege negligently used forceps during the delivery of their son. Before the jury was sworn in at trial, both sides sought to backstrike prospective jurors. The trial court, however, refused to allow either side to backstrike. The Gonzalezes had a peremptory challenge available to exercise. The parties thereafter accepted the jury panel, as well as the alternate jurors, and the jury was sworn in. At no time did the Gonzalezes renew any objection to the selection of the jury panel prior to the jury having been sworn.
Also during the trial, the Gonzalezes sought to elicit the non-expert witness testimony of nineteen treating physicians. The trial court limited their witness testimony to three. The trial court subsequently allowed the defendants to read into the record the depositions of various treating physicians, none of whom the trial court permitted the Gonzalezes to call as witnesses. The jury returned a verdict in Dr. Martinez's favor, and the trial court thereafter entered its final judgment in favor of both doctors and denied the Gonzalezes' post-trial motions.
We agree with the Gonzalezes that the trial court's refusal to allow them to exercise a peremptory strike prior to the jury having been sworn constitutes per se reversible error. Under Florida law, it is per se reversible error to deny a party its right to exercise a peremptory challenge against a juror that has not been sworn. The Florida Supreme Court has stated that trial counsel have the right to challenge any juror, either peremptorily or for cause, before a jury is sworn. See Tedder v. Video Electronice, Inc., 491 So.2d 533 (Fla. 1986). The juror whom the Gonzalezes attempted to backstrike had not yet been sworn. The trial court's erroneous ruling cannot be said to be harmless. See Saborit v. Deliford, 312 So.2d 795 (Fla. 3d DCA 1975) (holding that refusal to permit a litigant to exercise a peremptory challenge on an unsworn juror cannot be said to he harmless error when an adverse verdict is returned).
The appellees argue that the jury selection issues the Gonzalezes now raise are not issues preserved for appellate review because the Gonzalezes failed to renew any objection to the jury panel prior to the jury having been sworn. We recognize the duty to renew voir dire objections before a jury is sworn so as to preserve the issue for appellate review consistent with the contemporaneous objection requirement of State v. Neil, 457 So.2d 481 (Fla. 1984), and State v. Slappy, 522 So.2d 18 (Fla. 1988). We decline extending the preservation requirement ofNeil and Slappy to a case where the trial court has repeatedly and unequivocally stated that it would not allow backstriking.
We further find that the trial court abused its discretion when it limited the number of treating physicians the Gonzalezes could call upon to testify at the trial. This Court has held that a trial court abuses its discretion when it denies litigants their right to elicit fact testimony from their treating physicians.See Ryder Truck Rental, Inc. v. Perez, 715 So.2d 289, 290 (Fla. 3d DCA 1998). The trial court's error is much more serious and troubling to this Court because the trial court compounded its mistake when it permitted the defendants to read into the record the deposition testimony of the very same witnesses which the court had precluded the plaintiffs from calling. This gave the jury the misimpression that the deposition testimony belonged to witnesses for the defense.
We agree with the defendants that a trial judge has the discretion to limit the number of witnesses who the parties may call to testify at trial, and there is no abuse of discretion when the trial judge excludes additional medical testimony that would have been cumulative in nature. In this case, however, we cannot agree with the defendants that the limitation the trial court placed upon the number of plaintiffs' witnesses was nonetheless justified. During closing arguments, the trial court allowed the defendants to reference the plaintiffs' treating physicians and did not permit plaintiffs' trial counsel to explain to the jury why the plaintiffs had only called three physicians to testify. The trial court instead reprimanded plaintiffs' counsel in the jury's presence when plaintiffs' counsel referred to the defense's closing comments related to the three physicians that the plaintiffs had called to testify. We cannot say that the comments made by defense counsel and the trial court, coupled with the trial court's refusal to allow plaintiffs' counsel to explain to the jury their reasons for having called only three physicians to testify, did not conceivably prejudice the plaintiffs.
Reversed and remanded.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.