Summary
reversing order granting new trial because a juror did not reveal she had been in a divorce and was the target of collection efforts, in part because there was no showing that counsel would have exercised a peremptory challenge against the juror, had he known the information
Summary of this case from Bolling v. JonesOpinion
No. 3D05-1989.
November 1, 2006. Rehearing and Rehearing En Banc Denied February 2, 2007.
Appeal from the Circuit Court, Miami-Dade County, Leon M. Firtel, J.
Murray A. Greenberg, Miami-Dade County Attorney, and Craig E. Leen, Assistant County Attorney, for appellants.
Hoffman Hertzig and Carl H. Hoffman, Coral Gables, for appellees.
Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
The defendants in a medical malpractice case appeal from an order granting a new trial after a defense verdict because a serving juror, in answer to a question on voir dire as to whether she had been involved in a "lawsuit," failed to reveal that she had been in a divorce and was the subject of collection efforts by creditors against her. For two reasons, we reverse for entry of judgment in accordance with the verdict.
First, in the absence of any definition of "lawsuit" which would, as in Roberts v. Tejada, 814 So.2d 334 (Fla. 2002), include such proceedings, there was no deliberate misstatement by the juror which would justify relief under De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995).
Second, and quite separately, there was no showing, as is also required, that counsel would have exercised a peremptory challenge against the juror had he been given the information in question. See Freedman v. De La Cuesta, 929 So.2d 25 (Fla. 3d DCA 2006).
Reversed.
FLETCHER, J., concurs.
I concur in the judgment on the ground that the juror nondisclosures in this case were not material within the meaning of Roberts v. Tejada, 814 So.2d 334, 340 (Fla. 2002), and its progenitor, De La Rosa v. Zequeira, 669 So.2d 239, 241 (Fla. 1995). I am less sanguine about the majority conclusion that there was no concealment or "deliberate misstatement" within the meaning of the controlling case law in this area. However, because materiality is a sine qua non to the grant of a new trial on the basis of juror nondisclosure, Tejada, 814 So.2d at 339 (delineating three elements, all of which must exist for a party to be awarded a new trial on the basis of juror nondisclosure), we need not reach that question. See Mann v. State, 937 So.2d 722, 730 (Fla. 3d DCA 2006) (Shepherd, J., specially concurring) (noting that "[the] procedural ground [was] a sufficient ground to affirm the decision of the trial court" and therefore declining to join remainder of majority opinion); N. Fla. Women's Health Counseling Servs., Inc. v. State, 866 So.2d 612, 640 (Fla. 2003) (declining to address remaining constitutional claims in case because unnecessary to disposition of the case); see also PDK Labs., Inc. v. United States DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)(Roberts, J., concurring) ("[I]f it is not necessary to decide more, it is necessary not to decide more . . .").