FLORIDA LAW WEEKLY

VOLUME 41, NUMBER 41

CASES FROM THE WEEK OF OCTOBER 14, 2016

THE TRIAL COURT PROPERLY FOUND PLAINTIFF NOT ENTITLED TO A NEW TRIAL ON THE GROUND THAT THE JUROR ENGAGED IN MISCONDUCT BY POSTING COMMENTS ON SOCIAL MEDIA IN VIOLATION OF THE COURT’S INSTRUCTIONS WHERE THE COMMENTS CONTAINED IN THE JUROR’S TWEETS WERE DETERMINED NOT TO BE PREJUDICIAL TO THE PLAINTIFF--TRIAL COURT ALSO PROPERLY FOUND THAT JUROR’S FAILURE TO DISCLOSE ON VOIR DIRE THAT HE AND HIS FATHER HAD BEEN INVOLVED IN AN ACCIDENT WAS NOT MATERIAL AND NOT A BASIS FOR A NEW TRIAL.

Murphy v. Roth, 41 Fla. L. Weekly D2282 (Fla. 4th DCA October 5, 2016):

This appeal arose from an automobile accident case where both liability and damages were hotly contested.  Plaintiff asserted she had been hit from behind by a phantom car which caused her to swerve and lose control, until she was hit in the front by the defendant’s car and forced off the road.  The defendant claimed that the plaintiff struck his car from the rear passenger side, skewing his car to the right, whereupon the front side of his car was hit, sending him spinning off the road.

The judge had instructed the jurors not to communicate with anyone about the case or their jury service, and also explicitly prohibited them from tweeting, texting, blogging, posting on Facebook, etc. 

During voir dire, the trial court inquired whether anyone had been involved in a similar situation/automobile accident.  Several prospective jurors discussed accidents involving them or their family members, and the juror at issue did not respond to the follow-up questions.  Plaintiff later asked if anyone had a family member or friend who had undergone cervical surgery.  The juror at issue responded that his stepmother was in a car accident and had some plates inserted in her neck but was not sure if the procedure was a cervical fusion.  The plaintiff’s counsel asked a few follow-up questions about her recovery, but did not inquire further about the accident or whether a lawsuit arose.

At another point during voir dire, plaintiff’s counsel asked the jurors about their feelings towards personal injury lawsuits.  The subject juror not only indicated that there are probably more frivolous lawsuits than there should be, but stated that he was kind of indifferent to lawsuits, finding that some people need the money and some people just do it for the money.  He said he felt like a good number of people sue for “dumb reasons.”

The jury returned a verdict for past and future medical expenses and apportioned liability 60% to the plaintiff and 40% to the defendant, and found plaintiff suffered no permanent injuries so no damages for pain and suffering were awarded.  Plaintiff filed a motion for juror interview based on newly discovered evidence, where she contended that her right to a fair and impartial trial was compromised by the subject juror based on a number of his tweets he made about being angry about being picked as a juror, despite his attempts not to be picked.  He also stated that the people he was working with were pretty cool and being a juror was not that bad, but noted that everyone is so money hungry, they will do anything for money.

The judge granted the juror interview.  The juror admitted that the Twitter account in question was his.  When the judge asked him about whether he did not understand her instructions about not to tweet, he said he thought the instruction “pretty much” meant “don’t talk about the case.”  He said he did not tweet while he was sitting in the courtroom and did not intentionally or deliberately disobey the court’s order. 

He responded to a question about a tweet where he said he “half-assed” his answers that he did not fully understand what the plaintiff was asking, and that he gets nervous when being asked questions.  When she asked what he was referring to when he tweeted that everyone is so money hungry that they will do anything for it, he said he was tweeting about the fact that he and his father had gotten into an accident and that his father got a court order during the trial of this case.

The trial judge denied plaintiff’s motion for new trial and denied to take any action against the juror.  She then entered a final judgment in favor of the plaintiff for the $27,000 from which the appeal was taken.

In a bit of a surprising opinion, the Fourth District noted how no Florida court has directly addressed the issue of juror misconduct arising from the use of social media during a trial, but pointed to a Third Circuit case where the court upheld it even though the juror squarely violated the court’s instructions, he had tweeted “nothing more than harmless ramblings” that had no prejudicial effect.  Because the comments raised no specific facts dealing with the trial and nothing in the comments indicated any disposition toward anyone involved in the suit, the court there concluded that every failure of a juror to abide by the prohibition to use social media will not result in a new trial.

The court also relied on several other decisions from jurisdictions around the country where new trials were surprisingly not granted, notwithstanding comments like “Jury duty 2 morrow.  I may get 2 hang someone…can’t wait,” and “Jury duty sucks!” 

The Fourth District distinguished a case cited by plaintiff where a juror completely disregarded the trial court’s instructions and tweeted about the case, even after being admonished not to during the trial.  He tweeted things like “Choices to be made hearts to be broken.”  In that instance, because the juror had been explicitly admonished during the trial after being caught red handed, the court felt that justified the new trial.

The Fourth District deferred to the court’s finding that the juror’s misconduct was neither intentional nor willful, and that none of the tweets were specific to the case.  Also, nothing in the plain language of the juror’s tweets discussed facts specific to the case.  Because reasonable people could differ as to what the trial judge did, the Fourth District found there was no abuse of discretion. 

Somehow the Fourth District even found that the juror’s testimony about the “money hungry” post was not about the plaintiff or the trial, was credible.  In applying the De La Rosa test, the court found that the record was insufficient to establish that the juror’s nondisclosure of the accident with his father was material, notwithstanding that the accident was within two years of the trial and that his father got the court order during the trial of the plaintiff’s case.  The juror noted how the accident was so minor, they were surprised that it turned into a lawsuit.

The Fourth District said it could not presume that the facts and circumstances of the accident were analogous to the facts and circumstances of this case because the plaintiff did not ask the juror a lot of questions about the accident or about why he did not disclose it in voir dire.  After the judge’s questioning, she--who was in the best position to determine credibility and prejudice--determined that the information was not material. 

Because information is considered concealed for purposes of the De La Rosa test where the information is squarely asked for and not provided, and that was not the case here, and failure to elicit the information is due to the fault of the complaining party, the court found that it had not met the requisite burden for a new trial.

OFFENDING ATTORNEY’S FEES PROVISION IN A NURSING HOME AGREEMENT COULD BE SEVERED BECAUSE IT DID NOT GO TO THE ESSENCE OF THE AGREEMENT, AND THUS DID NOT VOID THE ENTIRE ARBITRATION.

Hochbaum v. Palm Garden of Winter Haven, 41 Fla. L. Weekly D2265 (Fla. 2nd DCA October 5, 2016):

The arbitration agreement in this nursing home case contained an attorney’s fees provision stating that each party would bear its own fees and costs.  This contravened the right to attorney’s fees awardable under section 415.1111.

Plaintiff argued that the agreement suffered from unconscionability.  The court, however, drew the distinction on unconscionability, asking if the agreement is void against public policy, or if it is just “unenforceable.”

In this case, the arbitration agreement defeated the remedial purpose of section 415.1111, rendering it unenforceable, but not necessarily void against public policy.  The plaintiff argued that the provision could not be severed from the arbitration agreement in order to preserve enforceability, because the agreement did not contain a severability clause. 

However, relying on a supreme court case, Gessa v. Manor Care, 86 So.3d 484 (Fla. 2011), even without a severability clause, an offensive provision may be able to be severed from the arbitration agreement, but only if the offending provision goes to the heart of the agreement (and not just based on a severability clause), as set forth by the Fifth District in Novosett v. Arc Villages, 189 So.3d 895 (Fla. 5th DCA 2016) (the court applied the test of whether the offending clause or clauses goes to the very essence of the agreement). 

Because here, the attorney’s fees provision did not require the arbitration to be conducted in accordance with certain rules nor did it limit the compensatory punitive damages that could be recovered, it did not go to the very essence of the agreement, and thus the offending provision was indeed severable.

The court struck the offending provision, but upheld the agreement to arbitrate.

TRIAL COURT ERRED IN GRANTING PLAINTIFF A NEW TRIAL AFTER THE JURY AWARDED NO DAMAGES BASED ON THE GENERAL RULE THAT A PLAINTIFF IS ENTITLED TO AT LEAST THE MEDICAL EXPENSES INCURRED FOR DIAGNOSTIC TESTING REASONABLY NECESSARY TO DETERMINE WHETHER THE ACCIDENT CAUSED THE INJURY--THERE IS AN EXCEPTION TO THAT RULE, HOWEVER, WHEN A PLAINTIFF LACKS CANDOR WITH HER TREATING PHYSICIANS--ALSO, PLAINTIFF FAILED TO OBJECT TO A VERDICT FORM THAT INVITED THE JURY TO RETURN AN “ALL OR NOTHING” VERDICT.

Finkel v. Batista, 41 Fla. L. Weekly D2279 (Fla. 3rd DCA October 5, 2016):

The plaintiffs were involved in a car accident that resulted in minimal property damage.  The trial court bifurcated the trial between liability, and causation and damages.  The jury found the defendant 100% liable for the accident.

In the second phase, the plaintiff’s treating orthopedic surgeon explained why he concluded that the accident at issue had caused a partial permanent injury to her lower back.  On cross-examination, however, he admitted that she had failed to disclose other accidents which had led to hospital visits to treat her prior back pain.  The doctor admitted that had he been aware of those undisclosed incidents, he may have changed his opinion regarding the causation of her back injuries from this accident.

Even defendant’s expert witnesses testified that certain diagnostic testing was reasonably necessary to determine whether the accident caused the injury.  However, the defense expert offered that testimony with the caveat that he was giving the plaintiff the benefit of the doubt that she was having complaints of pain after the accident, which he was assuming to be true.

The parties agreed to a verdict form which had one question on it, asking whether the defendant was negligent and whether the negligence was the legal cause of the loss, injury or damage to the plaintiff.  The jury answered the question “no.”

While the general rule is that the plaintiff is entitled to recover for medical expenses incurred for any diagnostic testing which was reasonably necessary to determine whether the accident caused her injuries as set forth in the Sparks-Book case, in this case there was conflicting expert medical testimony, and testimony that the testing would only be necessary if the plaintiff were truthful. 

The trial court in granting a new trial, did not make any finding that the verdict was against the manifest weight of the evidence; just that under the Sparks-Book rule the jury should have awarded at least nominal damages for the cost of the testing.  Also, because the plaintiffs did not object to the verdict form that invited the jury to return an “all or nothing” verdict, the jury could not be faulted for doing exactly as it was instructed to do.

The court ultimately concluded that the only way the trial judge could have reached the result of granting a new trial was based on legal error, and reversed and remanded for reinstatement of the jury’s zero verdict.