JUROR NONDISCLOSURE: Subtleties of the Most Common Post-Trial Argument by Celene Humphries
Hands-down, the most common argument made by the losing party is that a juror did not disclose an important fact. It is also almost always lost. Here, I discuss the four areas where mistakes are common, and the subtleties you need to be aware of to protect yourself or, if necessary, undo a defense verdict. Squarely ask questions of venire panel: The first prong for proving juror nondisclosure asks whether a concealment occurred. De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla. 1995). The critical point here is that information is considered concealed only if “the information is ‘squarely asked for’ and not provided.” Birch ex rel. Birch v. Albert, 761 So.2d 355, 358 (Fla. 3d DCA 2000), citing Mazzouccolo v. Gardner, McLain & Perlman, M.D., P.A., 714 So.2d 534, 536 (Fla. 4th DCA 1998); see also Bernal v. Lipp, 580 So.2d 315, 316 (Fla. 3d DCA 1991). This means that the question propounded must be straightforward, and not reasonably susceptible to misinterpretation. Mitchell v. State, 458 So.2d 819, 821 (Fla. 1st DCA 1984); see also Gamsen v. State Farm Fire & Cas. Co., 68 So.3d 290, 294 (Fla. 4th DCA 2011). When answering this question, it is important to consider the “context in which that question was asked and the answers given….” McCauslin v. O’Conner, 985 So.2d 558, 562 (Fla. 5th DCA 2008); see also Tricam Industries, Inc. v. Coba, 100 So.3d 105, 113 (Fla. 5th DCA 2012).
52 | January/February 2018 | www.FloridaJusticeAssociation.org
Two cases make this point. In the McCauslin case, counsel for the plaintiff asked the panel “[H]ave any of you ever been injured in any way, whether it be a car accident, a collision, a slip and fall?” McCauslin, 985 So.2d at 562. Sounds good, right? Wrong. The court held that “the question was broad and was asked in response to prospective Juror Glen’s comment that he and his wife were seriously injured in an automobile accident. Juror Glen said that he felt he could not be fair because of the severity of his prior injuries.” Id. The court went on to explain that the panel “may have assumed that the question was geared toward serious injuries that might affect their impartiality since such were the injuries that had generated the question. McCauslin’s counsel inquired two more times whether anyone else had been injured in a car accident, and each time, two more potential jurors answered affirmatively, discussing in detail the severity of their injuries.” Id. In Tricam Industries, the court examined “the context in which the trial court asked the jurors about their litigation history, coupled with the jurors’ responses” to determine that the information not disclosed was not squarely asked for. 100 So.3d at 112. In that case, the venire was asked if they had ever been sued and “all of the responses by the jurors were disclosures of prior personal injury suits.” Id. at 113. The Fifth District held that the questioning, coupled with the responses focused on personal injury suits, could