We definitely can question this guy!

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 35

AUGUST 30, 2024

WRIT OF CERTIORARI PROPER TO ADDRESS TRIAL COURT’S ORDER OF JUROR INTERVIEW BEFORE DETERMINING WHETHER THE PLAINTIFF WAS ENTITLED TO A NEW TRIAL—TRIAL COURT CORRECTLY ORDERED THE INTERVIEW BASED ON THE RECORD

Huether v. Adventist Health Systems, 49 Fla. L. Weekly D1774 (Fla. 5th DCA Aug. 20, 2024):

The plaintiff brought a medical malpractice case. After more than three years of litigation, the court conducted a five-day jury trial, leading to a verdict for the defendant doctor and hospital.

Five days after the defense verdict, the plaintiff filed a motion seeking a new trial based on alleged concealment of information by a juror during voir dire and his further misconduct during trial.

Specifically, during jury selection, the juror was asked if he had ever been involved in a lawsuit before and responded “never.” The answer was devoid of equivocation or uncertainty, and the court found it was clear and unambiguous.

The plaintiff alleged in her motion for new trial that the juror had been involved in no fewer than five prior litigations, two of which were civil cases where he was the named defendant, and also had two criminal cases filed against him (one for DUI and one for domestic battery), as well as a long-standing bankruptcy case.

The plaintiff’s motion also asserted that the juror violated the trial court’s clear and repeated instructions not to communicate about the case, including on social media. The motion alleged that the juror had posted on Facebook about the case during jury selection and during the trial, responded to comments on his post made during trial that “a good attorney is like a ninja” and giving a “thumbs up” to a commenter’s statement of “not guilty.” The plaintiff attached screenshots of these Facebook page posts to her motion.

While Florida Law has long recognized that post-verdict juror interviews are strongly disfavored and should be rarely granted or conducted because of the sanctity of the jury process and the privacy rights of jurors themselves, under these circumstances, the trial court was well within its discretion to order the interview before deciding whether to grant a motion for new trial.

The plaintiff learned of the jurors’ purported misconduct during trial and did bring the matter to the trial court’s attention. The trial court decided to wait until after the trial and the motion for juror interview to address it.

Even though Florida law rightly makes post-verdict juror interviews rare, where adequate proof suggests that a juror has acted improperly and contrary to lawful instructions of the trial court, an interview of the offending juror was appropriate in this case.

Here, the trial judge ordered the interview of the juror to evaluate the issue of his concealment of the prior lawsuits, which, with his unequivocal response of “never,” quite possibly was a concealment of material information from the court and counsel.

That, coupled with the “thumbs up” reply to a commenter’s statement “not guilty,” may have impacted the plaintiff’s view of the juror’s impartiality in the case and her decision on whether to challenge him. As a result, the information established a sufficient basis of concern to permit a post-verdict interview so the trial court could determine what prejudice, if any, was suffered by the plaintiff in ruling on the motion.

ERROR TO DISMISS COMPLAINT FOR INSUFFICIENT SERVICE – WHILE PLAINTIFF DID NOT RE-SERVE THE DEFENDANT AFTER INITIALLY DISMISSING DEFENDANT FROM LAWSUIT, THE DEFENDANT WAIVED THE DEFENSE OF INSUFFICIENT SERVICE BY FILING A MOTION FOR SUMMARY JUDGMENT DIRECTED TO THE MERITS OF THE CASE BEFORE RAISING THAT DEFENSE

Passafume v. Shifa Health Care Holdings, LLC, 49 Fla. L. Weekly D1782 (Fla. 5th DCA Aug. 23, 2024):

The plaintiff appealed a non-final order dismissing her second amended complaint for insufficient service of process, as well as the subsequent order denying her motion for reconsideration.

While the plaintiff acknowledged that she failed to re-serve process on the defendant upon filing new claims against the defendant after voluntarily dismissing the defendant from her original suit, she correctly asserted that the defendant waived its defense of insufficient service of process by filing a motion for summary judgment, before raising the defense as required by Florida Rules of Procedure, 1.140(b).

Accordingly, the appellate court reversed the dismissal.

A defendant waives a challenge to insufficient service of process by failing to raise such a challenge at its first opportunity, instead filing a motion for summary judgment or in another way, submitting itself to the jurisdiction of the court.