Juror Nondisclosure: What's the Standard?

Appellate Practice by Christopher V. Carlyle and Joseph M. Taraska, Issue #519, April-May 2007

Assume for a moment that you are in the fortunate position of obtaining a large verdict after a lengthy jury trial. While basking in the glow of the hard fought victory, you receive a motion for new trial that claims that a juror failed to disclose material information concerning his or her previous litigation history.³ On the other hand, assume that after a defense verdict, you obtain information that a juror was less than candid concerning involvement in previous lawsuits. In either case, you would then diligently research the standards the trial court will apply as it considers the allegation. Sounds easy enough, but your research reveals that there is considerable uncertainty as to what must be demonstrated by the moving party.

The leading case on the issue is De La Rosa v. Zequeira⁴ where the Florida Supreme Court established a three-pronged test which applies in cases of juror nondisclosure. The Court held:

In determining whether a juror's nondisclosure of information during voir dire warrants a new trial, courts have generally utilized a three-part test. First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed⁵ the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party's lack of diligence.⁶

De La Rosa then goes on to adopt the dissenting opinion from the case below, which quoted Third District decision Bernal v. Lipp⁷ for the proposition that "omission of the information prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge."⁸ Thus, De La Rosa requires that the movant meet that standard in order to obtain a new trial.

While this standard seems straightforward, subsequent decisions have created considerable confusion in this area. In 2002, the Florida Supreme Court decided Roberts v. Tejada.⁹ In Roberts, the Court explicitly cited the "would in all likelihood" standard from De La Rosa,¹⁰ and remanded to the Third District with directions to "remand to the trial court for consideration of the issues raised here consistent with the standards articulated in De La Rosa and this opinion."¹¹ However, Roberts also included a lengthy discussion concerning the "materiality" prong of the De La Rosa test, and cited extensively from Birch v. Albert,¹² decided by the Third District in 2000. That opinion, in a footnote, cited Blaylock v. State¹³ for the proposition that a "response on voir dire is only material 'if it is so substantial and important that if the facts were known [the moving party] may have been influenced to peremptorily exclude the [juror] from the jury.'"¹⁴

Thus, by including authority which is apparently contrary to De La Rosa, Roberts opened the door for confusion about the applicable standard. The question becomes: is the standard a nondisclosure which "would in all likelihood" have resulted in a peremptory challenge, or "may" have resulted in a peremptory challenge? This question can have great significance in a given case, since it would logically seem easier to persuade a trial court that a peremptory challenge "may" have been used as opposed to convincing the court that a challenge "would in all likelihood" have been used. Florida courts have used both standards, and the confusion is starkly demonstrated by two recent decisions from the Third District.

In Public Health Trust of Miami-Dade County v. Metellus,¹⁵ the court reversed an order granting a new trial after a defense verdict. In the opinion, the court stated that there was no showing that "counsel would have exercised a peremptory challenge against the juror had he been given the information in question."¹⁶ However, in Pereda v. Parajon,¹⁷ the court reversed and remanded for a new trial while stating that "respective counsels may indeed have been influenced to challenge [the juror] peremptorily had the facts of her personal injury litigation been known."¹⁸ Thus, the same District Court of Appeal applied different standards to the same issue in cases decided within a few months of each other.

The confusion is apparent from cases in other districts as well. The Fourth District has cases that cite each standard, thus providing authority for either position. In Taylor v. Magana,¹⁹ the court cited the "would in all likelihood" language, while it applied the "may" standard in Palm Beach County Health Department v. Wilson.²⁰

The Fifth District's decisions have reconfirmed the uncertainty. Although applying the "would have" standard to the facts of the cases before it, the Fifth District has, on occasion, included language that creates confusion. In Murphy v. Hurst.²¹ the court initially utilized the "may have been in influenced" language, but in applying the De La Rosa standard to the facts, declared that it had "studied the record and [saw] nothing in the pattern of peremptory challenges to suggest that Murphy would have stricken [the juror at issue] if the information had been disclosed during voir dire."²²

A similar inconsistency is found in Garnett v. McClellan,²³ where the Fifth District used the "may have" language in one portion of the opinion, but cited the supreme court's decision in De La Rosa for the proposition that a new trial was warranted where, among other things, "the omitted information prevented counsel from making an informed judgment which in all likelihood would have resulted in a peremptory challenge."²⁴ After reviewing the facts in Garnett, the Fifth District went on to note that there was "nothing to suggest that defense counsel would have used a peremptory challenge ... against [the juror] even if [the juror] had disclosed the information."²⁵

As noted, the confusion can be traced to Roberts, which cited Blaylock and Garnett while also citing the clear standard set forth in De La Rosa. While Roberts apparently created confusion about the "may" versus "would" standard, subsequent Florida Supreme Court opinions which cite De La Rosa appear to resolve any doubts on this issue.

In Kelly v. Community Hospital of Palm Beaches, Inc.,²⁶ the Court cited Bernal and De La Rosa and noted that, particularly in the case of one of the jurors, the omissions "would in all likelihood have resulted in a peremptory challenge." Similarly, in State Farm Fire and Casualty Company v. Levine,²⁷ the Florida Supreme Court cited Roberts and stated, "as this Court has recognized, materiality is only shown 'where the omission of the information prevented counsel from making an informed judgment-which would in all likelihood have resulted in a peremptory challenge.'"²⁸ Thus, the Florida Supreme Court does not appear to share the confusion about the standard indicated by the opinions cited above, and the Court clearly indicated in several opinions that the "would in all likelihood have resulted in a peremptory challenge" standard is the controlling principle in juror nondisclosure cases.

And it should be. We live in an information age of computers capable of gathering and storing extraordinary amounts of data on nearly every aspect of our daily lives. With the advent of electronic record keeping, it is now possible to retrieve vast amounts of information on jurors. It is likely that there will be occasions when prospective jurors inadvertently fail to disclose everything that may be responsive to a broad question as to past legal involvement. Application of a standard that would allow the trial court to overturn a verdict with a simple showing that the information may or could have affected one attorney's use of a peremptory challenge is, at best, a standard infinite in its possibilities, and, at worse, no standard at all.

There is certitude and assurance in a "would have" standard. An attorney's voir dire examination would be scrutinized, as it should, for evidence that the juror's nondisclosure would have impacted the attorney's use of his challenges. A "would have" standard demands accountability of those with the best vantage to consider all of the facts. A "may have" standard, almost by definition, defies certainty.

More insidiously, however, the "may have" standard creates an environment in which trial attorneys who have lost a case scour through the jurors' background using computers, private investigators and every other conceivable method of investigating an individual juror hoping to find anything they might be able to utilize to argue it "may have" made a difference in their use of challenges.

The issue of juror nondisclosure is very "hot" in Florida at the moment, and a strong possibility exists that anyone who tries cases will confront the issue at some point. Litigators should be aware of the law on the issue, the standards involved, and the confusion in this area. Unless the Florida Supreme Court accepts jurisdiction²⁹ and reiterates that the "would have" standard controls, an ever growing body of wildly divergent case law will continue to cloud the issue in this state.

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¹ Christopher V. Carlyle is a shareholder with the The Carlyle Appellate Law Firm, which has offices in Orlando and The Villages. The Carlyle Appellate Law Firm is a member of The Florida Appellate Alliance, a statewide alliance of three appellate firms with offices in North, Central, and South Florida. Mr. Carlyle is Board Certified in the area of Appellate Practice, is a Certified Appellate Mediator, and is a member of the Appellate Practice Section of The Florida Bar. He has attained an AV rating from Martindale-Hubbell.

² Joseph M. Taraska is a member of the law firm of Jacobs & Goodman, P.A., in Altamonte Springs, Florida. He has been a member of the Florida Bar since 1977 and has been a Board Certified Civil Trial Lawyer since 1984. Mr. Taraska's primary areas of practice are medical malpractice, nursing home abuse, and complex personal injury cases.

³ Information about involvement in prior litigation is very important in assessing the impartiality of a given juror. "A person involved in prior litigation may sympathize with similarly situated litigants or develop a bias against legal proceedings in general. In these circumstances, counsel must be permitted to make an informed judgment as to the prospective juror's impartiality and suitability for jury service." Zequeira v. De La Rosa, 627 So. 2d 531, 533 (Fla. 3d DCA 1993) (Baskin, J., dissenting), quashed by De La Rosa v. Zequeira, 639 So. 2d 239 (Fla. 1995).

⁴ 639 So. 2d 239 (Fla. 1995).

⁵ The Florida Supreme Court has held that "a juror's nondisclosure need not be intentional to constitute concealment." Roberts v. Tejada, 814 So. 2d 334, 343 (Fla. 2002).

⁶ De La Rosa, 659 So. 2d at 241 (citations omitted).

⁷ 580 So. 2d 315, 317 (Fla. 3d DCA 1991).

⁸De La Rosa, 659 So. 2d at 242 (emphasis added).

⁹ 814 So. 2d 334 (Fla. 2002).

¹⁰ Id. at 343-44.

¹¹ Id. at 345.

¹² 761 So. 2d 355 (Fla. 3d DCA 2000).

¹³ 537 So. 2d 1103 (Fla. 3d DCA 1988).

¹⁴ Id. at 340-41 (emphasis added).

¹⁵ 948 So. 2d 4 (Fla. 3d DCA 2006).

¹⁶ Id. (citing Freedman v. De La Cuesta, 929 So. 2d 25 (Fla. 3d DCA 2006)). Note that Metallus and Freedman both eliminate the phrase "in all likelihood" used in De La Rosa and Roberts, thereby arguably creating a higher third standard. In Bernal v. Lipp, 580 So. 2d 316 (Fla. 3d DCA 1991) and State Farm Fire & Cas. Co. v. Levine, 875 So. 2d 663 (Fla. 3d DCA 2004), the Third District used the "would in all likelihood" language.

¹⁷ 32 Fla. L. Weekly D812 (Fla. 3d DCA March 28, 2007). As of this writing the opinion is not yet final, and motions for certification, rehearing and rehearing en banc are pending.

¹⁸ Id. (emphasis added). The trial court in Pereda found that "there is no basis to believe that plaintiff's counsel would have used a peremptory challenge to strike" the juror in question. Id.

¹⁹ 911 So. 2d 1263 (Fla. 4^th DCA 2005).

²⁰ 944 So. 2d 428, 430 (Fla. 4^th DCA 2006). In Wilson, the Fourth District found "that the defense may have been influenced to peremptorily challenge" a juror had the facts of a prior lawsuit been disclosed.

²¹ 881 So. 2d 1157 (Fla. 5^th DCA 2004).

²² Id. at 1162 (emphasis added).

²³ 767 So. 2d 1229 (Fla. 5^th DCA 2000).

²⁴ Id. at 1230 (emphasis added).

²⁵ Id. at 1291.

²⁶ 818 So. 2d 469, 476 (Fla. 2002).

²⁷ 837 So. 2d 363 (Fla. 2002).

²⁸ Id. at 365.

²⁹ The plaintiff in Metellus, who had an order granting a new trial reversed by the Third District, has petitioned the Florida Supreme Court to accept jurisdiction in part because of an alleged conflict between those cases which call for a moving party to show that it would have exercised a peremptory challenge versus those that would in all likelihood have resulted in a peremptory challenge. See 2007 WL 904187. As of this writing, the Florida Supreme Court has not decided whether or not to accept the case.