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FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 33

CASES FROM THE WEEK OF AUGUST 22, 2025

TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION FOR A NEW TRIAL BASED ON JUROR MISCONDUCT (WITHHOLDING MATERIAL INFORMATION) IN VOIR DIRE – FAILING TO EXAMINE JUROR QUESTIONNAIRES MADE AVAILABLE BY THE TRIAL COURT AMOUNTS TO LACK OF DILIGENCE BY THE COMPLAINING PARTY

Farrell v. Chartuck, 50 Fla. L. Weekly D1797 (Fla. 4th DCA Aug. 13, 2025):

In this automobile accident case, the jurors filled out questionnaires. One juror had answered the question about having made a claim for personal injuries by stating that he was in a car accident that was still pending.

During voir dire, the defendant’s attorney asked if any of the jurors had ever been involved in an injury lawsuit. The subject juror answered that his girlfriend was right in the middle of a lawsuit after having been hit from behind. He also noted that when he was younger, he was on the other side of a lawsuit. Even though the defendant’s attorney had asked other jurors about their completed questionnaires, the attorney did not ask any questions about this specific juror’s completed questionnaire, or his own accident claim.

When the plaintiff’s attorney questioned the juror, his questions focused on the girlfriend’s accident case, never referring to the juror’s completed questionnaire. The jury awarded the Plaintiff $400,000 in damages.

The defendant moved for a new trial, asserting this juror failed to disclose his injury case. Based on the motion, the trial judge allowed the parties to conduct a juror interview which revealed that the juror had a little bit of a back, knee, and shoulder pain resulting from the accident and after the subject trial, his claim resolved for $6,000.

The plaintiff’s attorney asked the juror if he would have disclosed the information about his accident had he been asked during voir dire, to which the juror responded “Absolutely, I think I wrote it on my questionnaire as well.”

Three factors determine whether a juror’s alleged nondisclosure of information during jury selection warrants a new trial; the complaining party must establish that the information is relevant and material to the jury service, that the juror concealed the information during questioning and that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.

Here, neither party asked a single question about the juror’s written response disclosing that he had been involved in a pending car accident. Failing to examine the questionnaire made available by the trial court amounted to a lack of diligence by the complaining party and the trial judge erred in granting a new trial.

NO ERROR IN GRANTING A NEW TRIAL BASED ON COMMENTS MADE BY DEFENSE COUNSEL DURING CLOSING THAT IMPUGNED THE CREDIBILITY AND INTEGRITY OF THE PLAINTIFF’S COUNSEL AND DEPRIVED THE PLAINTIFF OF A FAIR TRIAL

Stevenson v. Israeli, 50 Fla. L. Weekly D1811 (Fla. 3rd DCA Aug. 13, 2025):

In this assault and battery action, the complaint alleged that the professional boxer defendants, hit the plaintiffs during a confrontation in a valet parking garage. The plaintiff sought compensatory and punitive damages. One of the defendants claimed he was acting in self-defense and admitted he hit the plaintiff and broke his jaw. The jury also learned that a defendant pled guilty to misdemeanor assault and felony assault and battery. As to the two different plaintiffs, the extent of the injuries were in dispute, and the jury awarded substantially less than the plaintiffs sought (the jury awarded $60,000 and the plaintiffs sought several million dollars).

The defense counsel repeatedly said things like “the plaintiff’s lottery has come in.” He asserted that the plaintiff pumped up the numbers, accused someone of committing perjury and argued that the person was not truthful, adding that people will lie through their teeth for $12 million. Counsel said a bunch of plaintiffs’ lawyers came in and lied to the jury.

The trial court concluded that these repeated comments attacking plaintiffs’ counsel and accusing them of lying constituted fundamental error and granted the plaintiffs a new trial.

The court went into detail about each of these comments that clearly impugned the credibility and integrity of the plaintiff’s attorneys. The court found no error in the trial judge’s determination that taken cumulatively, the comments rose to the level of fundamental error that denied the plaintiffs the right to a fair trial.

A PARTY DOES NOT VOLUNTARILY DISMISS A CLAIM WITHOUT FILING A NOTICE OF DISMISSAL AS REQUIRED BY RULE 1.420

Reina v. Klisivitch, 50 Fla. L. Weekly D1829 (Fla. 6th DCA Aug. 15, 2025):

In this car accident case, the plaintiff went to the emergency room complaining of generalized pain in the top of his body including his ribs, back, and chest. Once he was released, he began treatment with a chiropractor and was eventually referred to a neurosurgeon. He complained of back pain among other issues, and an MRI showed significant disc herniation, bulges, and a lateral tear.

At trial, plaintiff’s physician testified to a reasonable degree of medical certainty that the plaintiff had sustained injuries to his back and neck that were caused by the accident. During the plaintiff’s testimony, he testified that after the accident he felt pain in his ribs and near the top of his body. When the test results came back, they showed the injury was to his neck.

When asked if he experienced pain or injury to his lower back, the plaintiff said no and then corrected himself, saying he was feeling pain, but was told it was in his neck area. On cross, he said he was just in pain and that he was only claiming an injury to his neck, but experienced other effects that he described.

After the plaintiff rested, defense counsel moved in limine to exclude all evidence related to his back injury on the ground that he had withdrawn his claim during his testimony. In opposing the motion, plaintiff’s counsel argued that the plaintiff was not a medical professional and could not be expected to speak with precision regarding his back injury, and that he explained it sufficiently.

The trial court granted the motion in limine. The next day, the trial court wanted to reconsider its ruling, but defense counsel said they had already redacted all the testimony, making the trial judge feel like he was locked into his first ruling.

The plaintiff strenuously asserted that the plaintiff had not withdrawn his claim for back injury and was just simply nervous and inarticulate when he testified. The court said it would reaffirm its ruling to exclude the evidence of the back injury but would not instruct the jury, leaving it as a matter of argument. The trial court then granted the motion for a directed verdict, concluding that there was insufficient evidence for the back injury to be decided by the jury.

During closing arguments, plaintiff’s counsel discussed the plaintiff’s back pain, but all the evidence concerning back pain injury had been redacted or excluded, including all of his medical bills. The jury reached a very small verdict for the plaintiff.

As a preliminary matter, the court concluded that the plaintiff had not dismissed his back injury because the right to dismiss a claim voluntarily is governed by Rule 1.420(a)(1). Nothing in the plaintiff’s testimony constituted a notice of dismissal, including his responses to cross-examination questions.

Because the plaintiff had not dismissed his claim for having sustained a back injury, the trial court erred in granting the motion in limine and excluding evidence concerning the claim. This was an error that was not harmless because there could be no reasonable possibility that the error had not contributed to the verdict.

While the court reversed and remanded for a new trial on damages, it did not remand for a new trial on liability. The jury apportioned 80% of the fault to the defendant, and 20% to the plaintiff.

1.25% CONTINGENCY FEE MULTIPLIER UPHELD WHERE APPELLANT FAILED TO SUPPLY THE FULL HEARING TRANSCRIPT

Universal Property & Casualty v. Ron Hester Restorations, 50 Fla. L. Weekly D1832 (Fla. 6th DCA Aug. 15, 2025):

The appellant furnished the court with a transcript of the first day of a two-day evidentiary hearing only.

The court felt compelled to affirm because without the full transcript, it could not conclude that the order was not supported by the evidence or by an alternative theory.