Juan Torres v. First Transit, Inc.

979 F.3d 876

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 20, 2020
• Docket: 18-15186
• Status: Published

Opinion

USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 1 of 26

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15186 ________________________

D.C. Docket No. 9:17-cv-81162-BB

JUAN TORRES, ALEJANDRO TORRES,

Plaintiffs-Appellees,

versus

FIRST TRANSIT, INC.,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(October 20, 2020)

Before NEWSOM and TJOFLAT, Circuit Judges, and PROCTOR*, District Judge.

TJOFLAT, Circuit Judge:

* The Honorable R. David Proctor, United States District Judge for the Northern District of Alabama, sitting by designation. USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 2 of 26

I.

On September 30, 2017, a bus owned by First Transit, Inc. (“First Transit”)

struck a vehicle occupied by Juan Torres and Alejandro Torres (“the Torreses”) at

the intersection of North Military Trail and NW 19th Street in Boca Raton, Florida.

The Torreses were severely injured. Juan Torres suffered fractures to his spine,

right leg, and right ankle; Alejandro Torres suffered fractures to his ribs, right leg,

and sternum. The Torreses brought a claim for damages against First Transit in the

United States District Court for the Southern District of Florida, alleging that the

driver of First Transit’s vehicle was negligent and that First Transit was

responsible for the Torreses’ injuries. First Transit admitted liability, and the

District Court held a three-day jury trial on the issue of the amount of damages

incurred by the Torreses. The jury awarded Alejandro Torres a total of

$2,496,261.13 in damages, and the jury awarded Juan Torres a total of

$4,927,604.38 in damages. 1

First Transit moved for a new trial based on its post-trial discovery of the

litigation histories of two trial jurors, identified as Y.C. and E.S., which were not

disclosed during the jury selection process. Specifically, First Transit discovered

1 Specifically, Alejandro Torres was awarded $396,261.13 in past medical expenses incurred, $600,000 in past pain and suffering damages, and $1,500,000 in future pain and suffering damages. Juan Torres was awarded $877,604.38 in past medical expenses, $1,050,000 in past pain and suffering damages, and $3,000,000 in future pain and suffering damages. 2 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 3 of 26

that Juror Y.C. had been a defendant in eight civil litigation matters, and Juror E.S.

had been involved in five civil litigation matters. 2 Y.C.’s litigation history

includes multiple suits to collect unpaid credit card debt, two foreclosure actions

on property for which she was a mortgagor, and a lawsuit of undisclosed nature

brought against her by the state of Florida. E.S.’s litigation history includes two

foreclosure actions brought by a condominium association for his failure to pay

assessments, costs, and fees associated with his unit, as well as several suits

brought against him to collect unpaid debts.

The jurors in this case completed two forms prior to trial. The first, a “juror

qualification form,” is part of the District Court’s juror selection plan and was

mailed to prospective jurors alongside their jury summons to help the District

Court determine the prospective jurors’ eligibility to serve. United States District

Court for the Southern District of Florida, Plan For The Random Selection Of

Grand And Petit Jurors (May 5, 2010), available at

https://www.flsd.uscourts.gov/sites/flsd/files/JuryPlan.pdf. All prospective jurors

were required to complete this questionnaire and return it to the clerk of court. See

id. at Section VII, “Drawing of Names from the Master Jury Wheel; Completion of

Juror Summons and Questionnaire Form” (incorporating 28 U.S.C. § 1864(a)).

2 Though the District Court suggested that E.S.’s litigation history included a sixth matter, a personal bankruptcy, the evidence provided by First Transit does not appear to include any bankruptcy filings. 3 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 4 of 26

Once the venire was summoned pursuant to the District Court’s juror

selection plan, the prospective jurors assigned to District Judge Bloom’s court

completed a second form, Judge Bloom’s “Juror Questionnaire in Civil Cases” (the

“juror questionnaire”), which we have attached to this opinion for ease of

reference. See Attachment 1. Generally speaking, the juror questionnaire covers

subjects like the prospective jurors’ education, employment, and hobbies, as well

as the prospective jurors’ previous experiences in lawsuits and with juries. Id. The

prospective jurors were not aware of the subject matter of this case at the time they

responded to the juror questionnaire, and the questionnaire was completed prior to

the commencement of voir dire. Indeed, the District Court acknowledged before

voir dire began that the parties’ need for background questioning of the jurors was

obviated by the fact that their counsel “ha[d] the benefit of the completed [juror]

questionnaires.”3

First Transit’s motion for a new trial focused on Y.C.’s and E.S.’s responses

to a question on the juror questionnaire and to a question posed on voir dire. On

question 10 of the juror questionnaire, prospective jurors were asked: “If you

and/or a close family member or friend has ever been a party to a lawsuit (i.e., sued

3 Although the juror questionnaire was completed prior to voir dire, a prospective juror’s answers to the questionnaire are treated as equivalent to answers on voir dire. See, e.g., United States v. North, 910 F.2d 843, 903–04 (D.C. Cir.) (juror’s concealment of brothers’ prior criminal convictions on questionnaire treated as “juror withhold[ing] critical information on voir dire”), opinion withdrawn and superseded in part on other grounds, 920 F.2d 940 (D.C. Cir. 1990). 4 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 5 of 26

someone or been sued by someone) please describe the circumstances.” See

Attachment 1. Despite their litigation histories, Y.C. answered “N/A,” and E.S.

answered “No.” Similarly, during voir dire, the prospective jurors were asked by

the Court: “Is there anyone that has been involved in a civil lawsuit that has shaped

your view either negatively or positively about the legal system that you believe

would have an effect on your ability to serve as a fair and impartial juror?” Again,

neither Juror Y.C. nor Juror E.S. responded affirmatively.

First Transit contends that both jurors’ failure to disclose their litigation

histories in response to these questions was, in both cases, an “affirmative

concealment” suggesting a lack of impartiality. Accordingly, First Transit argues

that it is entitled to a new trial—or, at least, an evidentiary hearing to determine

unresolved questions of fact necessary to decide whether Y.C. and E.S. were

challengeable for cause.

Below, the District Court denied First Transit’s motion for a new trial

without holding an evidentiary hearing to investigate the jurors’ alleged

misconduct. The Court first assumed that Y.C.’s and E.S.’s pre-voir dire juror

questionnaire responses were dishonest. The Court found, however, that the

jurors’ silence during voir dire questioning “could only be speculated to be

dishonest” because of the question’s qualifier—it asked only about litigation

history that “shaped [the juror’s] view . . . about the legal system.” As a result, the

5 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 6 of 26

District Court declined to assume that the jurors’ failure to respond was dishonest

because, without an evidentiary hearing, it could not know the jurors’ views of the

legal system.

Next, the District Court held that First Transit had not shown that either

juror, had they answered the questionnaire honestly, would have been

challengeable for cause based on an inability or unwillingness to be impartial.

This conclusion primarily turned on the Court’s finding that Y.C.’s and E.S.’s

previous litigation history had “little to no connection [to] the present case.” The

District Court reasoned that “[a]n individual’s history of having been sued by

corporations bears only a very general connection to a case in which an unrelated

corporation is a defendant,” and that there is otherwise little in common between a

personal injury case like the Torreses’ and “a lawsuit by a bank to recover a debt, a

foreclosure, a lawsuit by a condominium association to recover unpaid

assessments, or a personal bankruptcy”—the sorts of cases in which Y.C. and E.S.

had been involved.

In addition, the District Court found that the jurors’ misstatements contained

no indication of bias against First Transit. In response to First Transit’s suggestion

that the jurors may have been biased in favor of the Torreses, the Court stated that

there was “no evidence that [either juror] had a motive to intentionally omit from

their jury questionnaire that they had been defendants in lawsuits for recovery of

6 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 7 of 26

debts so that they could serve on a jury to award Plaintiffs the full amount of their

medical bills, particularly given that jurors completed the questionnaires before

they were made aware of this potential issue.” The Court further noted that both

Y.C. and E.S. indicated during voir dire that they “were willing and able to be fair

and impartial in this case.” Ultimately, the District Court determined that it was

not “required to hold an evidentiary hearing to investigate the issue [of the jurors’

misconduct] further,” thus ruling that, as a matter of law, First Transit had failed to

make a case that either juror was unwilling or unable to be impartial.

First Transit appealed. 4 After reviewing the record and with the benefit of

oral argument, we vacate the District Court’s order denying First Transit’s motion

for a new trial and remand for an evidentiary hearing on the question of Y.C.’s and

E.S.’s impartiality.

II.

We review a district court’s decision whether to grant a new trial or an

evidentiary hearing for abuse of discretion. United States v. Quilca–Carpio, 118

F.3d 719, 722 (11th Cir. 1997). “A district court abuses its discretion if it applies

4 As an alternative basis for relief, First Transit also requests remittitur, or a new trial, on the theory that the jury’s verdict was excessive and was not supported by the evidence. The District Court denied relief on this ground, finding that the amount of the verdict was supported by the evidence and was not excessive. Because we are remanding this case to the District Court for an evidentiary hearing to determine whether the jury was impartial in reaching its verdict and to decide whether a new trial is warranted on that ground, we do not reach First Transit’s excessive-verdict arguments. 7 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 8 of 26

an incorrect legal standard, applies the law in an unreasonable or incorrect manner,

follows improper procedures in making a determination, or makes findings of fact

that are clearly erroneous.” Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1173

(11th Cir. 2010) (quoting Citizens for Police Accountability Political Comm. v.

Browning, 572 F.3d 1213, 1216–17 (11th Cir. 2009)). A “clear error in judgment”

is also an abuse of discretion. United States v. Brown, 415 F.3d 1257, 1266 (11th

Cir. 2005).

III.

Our legal system provides litigants the right to a “fair trial,” and a

“touchstone” of that right is “an impartial trier of fact—a jury capable and willing

to decide the case solely on the evidence before it.” McDonough Power Equip. v.

Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845, 849 (1984) (internal quotation

marks omitted). The voir dire process, and the attendant right of the parties to

challenge for cause the inclusion of potential jurors on the jury panel, safeguard

that right by seeking to prevent jurors who are incapable of impartiality from

deciding the case. Id. “The necessity of truthful answers by prospective jurors” is

“obvious”: These safeguards cannot function effectively when a later-empaneled

juror commits misconduct by failing to honestly answer questions posed on voir

dire. Id. If the juror’s deceit is not discovered until after a verdict has been

rendered, the fundamental fairness of the entire trial is in question.

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To obtain a new trial for juror misconduct that occurred during the jury

selection process, a party must make two showings: (1) “that a juror failed to

answer honestly a material question on voir dire,” and (2) “that a correct response

would have provided a valid basis for a challenge for cause.” United States v.

Carpa, 271 F.3d 962, 967 (11th Cir. 2001) (citing McDonough, 464 U.S. at 556,

104 S. Ct. at 850). McDonough’s first prong “requires a determination of whether

the juror’s answers were honest.” BankAtlantic v. Blythe Eastman Paine Webber,

Inc., 955 F.2d 1467, 1473 (11th Cir. 1992). Then, to satisfy the second prong,

there must be a showing of “actual bias,” which may be shown “either by express

admission or by proof of specific facts showing such a close connection to the

circumstances at hand that bias must be presumed.” Carpa, 271 F.3d at 967. Put

simply, if a juror’s failure to answer a question honestly suggests that the juror

could not have impartially evaluated the evidence at trial and applied it to the law

as instructed by the trial judge, then the fairness of the trial has been impugned,

and the moving party is entitled to a new trial. See McDonough, 464 U.S. at 556,

104 S. Ct. at 850.

When allegations of juror misconduct surface after trial, the investigation of

the alleged misconduct “is committed to the discretion of the district court and is

reviewed only for an abuse of that discretion.” United States v. Prosperi, 201 F.3d

1335, 1340 (11th Cir. 2000). There is no per se rule that requires a district court to

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investigate all claims of juror misconduct, United States v. Cuthel, 903 F.2d 1381,

1382–83 (11th Cir. 1990), and a district court has the discretion to decide a motion

for a new trial without conducting an evidentiary hearing to investigate, see United

States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997). Indeed, we have stated that an

evidentiary hearing is not required if “the record contain[s] all the evidence needed

to dispose of each of the grounds asserted as a basis for a new trial.” United

States v. Scrushy, 721 F.3d 1288, 1305 n.30 (11th Cir. 2013).

But a district court must investigate juror misconduct when the party

alleging misconduct makes an “adequate showing” of evidence to “overcome the

presumption of jury impartiality.” Cuthel, 903 F.2d at 1383 (citations omitted). 5

Once the duty to investigate is triggered, the district court has “substantial

discretion in choosing the investigative procedure to be used in checking for juror

misconduct.” United States v. Register, 182 F.3d 820, 840 (11th Cir. 1999)

(quotation marks omitted). To justify a post-trial evidentiary hearing involving

jurors’ misconduct, a moving party must show “clear, strong, substantial and

5 Our presumption of impartiality hinges on the honesty of prospective jurors on voir dire. See, e.g., McDonough, 464 U.S. at 554, 104 S. Ct. at 849 (discussing the “necessity of truthful answers by prospective jurors”); id. at 464 U.S. at 556, 104 S. Ct. at 850 (Blackmun, J., concurring) (“[T]he honesty or dishonesty of a juror’s response [on voir dire] is the best initial indicator of whether the juror in fact was impartial.”). Jurors “t[ake] their oath” to be honest, and “absent evidence to the contrary, we must presume that they [a]re fair and impartial, as indeed they sw[ear] to be.” United States v. Khoury, 901 F.2d 948, 955 (11th Cir.), opinion modified on denial of reh’g, 910 F.2d 713 (11th Cir. 1990). Of course, when prospective jurors are dishonest, the voir dire process simply fails to “serve its purpose.” McDonough, 464 U.S. at 554, 104 S. Ct. at 849. 10 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 11 of 26

incontrovertible evidence that a specific, nonspeculative impropriety has

occurred.” Cuthel, 903 F.2d at 1383 (quotation marks and alterations omitted).

“The more speculative or unsubstantiated the allegation of misconduct, the less the

burden to investigate.” Id. (quotation marks omitted).

A few cases outline the contours of a district court’s discretion to investigate

(or not to investigate) a juror’s dishonesty on voir dire. In United States v. Carpa,

criminal defendants moved for a mistrial based on a juror’s failure to fully disclose

his criminal history during voir dire. 271 F.3d at 963–65. The defendants argued

that this omission was deliberate and was based on the juror’s improper motivation

to serve on the jury in order to earn a reduction of his unrelated criminal sentence.

See id. at 967–68. The District Court asked the FBI to investigate the juror, his

dishonest statements, and his criminal history; the Court then held a hearing at

which the investigating agent testified. Id. at 965–66. After the agent testified to

the juror’s “criminal record and motive” based on interviews with the juror and his

probation officer, the District Court determined that the hearing established no

basis for a mistrial because there was insufficient evidence that the juror lacked

impartiality. Id. at 966.

On appeal, we held that the District Court’s finding was an abuse of

discretion. Id. at 967–68. Even though the District Court held an evidentiary

hearing, it relied only on the testimony of the investigating agent and did not

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receive the testimony of the allegedly partial juror. Id. We found that the District

Court’s investigative methods left unresolved “significant, appeal-determinative”

questions of dishonesty and bias, particularly because the District Court and

defense counsel did not have a chance to participate in the investigating agent’s

interview of the juror. Id. at 967–68. Accordingly, we remanded the case with

instructions to conduct a proper investigation, which included “cross-examination

of the juror by defense counsel” and “questioning of the [allegedly partial] juror in

camera if necessary.” Id. at 968.

Similarly, in Vezina v. Theriot Marine Service, personal-injury plaintiff

Allen Vezina, a seaman who was injured while mopping a slippery galley deck,

filed a motion for a new trial and for an evidentiary hearing concerning the alleged

misconduct of a juror. 554 F.2d 654 (5th Cir. 1977).6 In the District Court, Vezina

argued that he was prejudiced by the presence of “Mrs. Lowery” on the jury

because she failed to disclose on voir dire that she and her husband had a $500,000

personal injury suit pending against them. Id. at 655. For example, the trial judge

asked on voir dire: “Have any of you or any members of your immediate family

within the last ten or fifteen years sustained any injuries or damages growing out of

an accident which might have resulted in a claim against some other person,

6 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the creation of the Eleventh Circuit on September 30, 1981. 12 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 13 of 26

insurance company, partnership or corporation.” Id. at 656 n.3. The jury panel

understood this question to relate to both plaintiff and defendant participation in

personal injury cases, and other jurors disclosed their involvement as both

plaintiffs and defendants in past cases. Id. Mrs. Lowery, however, did not disclose

the pending personal injury suit in response to the District Court’s question, and

her nondisclosure was only discovered when one of the alternate jurors relayed the

information to Vezina’s counsel after trial. Id. at 655. Vezina moved for a new

trial based on this information. Id. The parties did not dispute that Mrs. Lowery

and her husband were defendants in the personal injury suit, and it was revealed

that Mrs. Lowery actually disclosed this information on voir dire for jury selection

in another case on the same day. Id. at 655–56. Despite Mrs. Lowery’s apparent

dishonesty, the District Court denied Vezina’s motion for a new trial without

conducting an evidentiary hearing. Id. at 656.

On Vezina’s appeal, the Fifth Circuit stated that it was “clear” that Mrs.

Lowery “failed . . . to disclose the pending litigation against her and her husband,

despite general questioning on voir dire by the trial judge and counsel,” and the

Court commented on the “gravity” of Mrs. Lowery’s nondisclosure. Id. at 655–56.

Consequently, the Court remanded the case to the district court for an evidentiary

hearing to resolve the “issues of alleged juror misconduct and the possible

prejudicial effect thereof.” Id. at 656.

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And United States v. Venske is informative. 296 F.3d 1284 (11th Cir. 2002).

In Venske, defendants William and Chantal—who were convicted of various

offenses related to a fraudulent telemarketing scheme—appealed the District

Court’s denial of their motions for a new trial and for an evidentiary hearing based

on alleged juror misconduct. Id. at 1286. 7 Following their trial and sentencing, the

defendants filed two affidavits from private investigators alleging juror misconduct

and extrinsic influence on jurors. Id. at 1287–88. After considering the motions

and the supporting affidavits, the District Court found that William and Chantal

failed to offer sufficient evidence in support of their motions, declined to hold an

evidentiary hearing, and denied William’s and Chantal’s motions for a new trial.

Id. at 1289.

We held on appeal that the first of William’s and Chantal’s affidavits, the

“Porter Affidavit,” failed to demonstrate that the juror at issue was influenced by

the statements described in the affidavit, and thus the District Court did not abuse

its discretion in concluding that the Porter Affidavit was insufficient evidence of

juror misconduct or extrinsic influence on the jury. Id. at 1290. By contrast, the

second affidavit, referred to as the “Roberts Affidavit,” “clearly involve[d]

extrinsic communications that, if properly presented to the district court,

7 The District Court did grant evidentiary hearings to two other defendants, Venske and Higgins, who had also filed motions for a new trial. Venske, 296 F.3d at 1288–89. 14 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 15 of 26

necessitate[d] further inquiry.” Id. at 1291. But because the Roberts Affidavit was

obtained in violation of a local rule prohibiting attorneys or litigants from

contacting jurors absent prior court approval, we concluded that the District Court

was right to exclude the Roberts Affidavit, and we affirmed its denial of William’s

and Chantal’s motions for a new trial and for an evidentiary hearing. Id. at 1292.

We reasoned that, without the Roberts Affidavit, William and Chantal were not

entitled to an evidentiary hearing because they “failed to make an adequate

showing of juror misconduct or extrinsic influence on the jury.” Id. But had the

Roberts Affidavit been admissible, an evidentiary hearing would have been

necessary to investigate whether the jury was impartial. Id. at 1291.

We read these cases together to say that when a party moving for a new trial

based on a juror’s nondisclosure during voir dire makes a prima facie showing that

the juror may not have been impartial and thus was plausibly challengeable for

cause—in other words, when the moving party has presented “clear, strong,

substantial and incontrovertible evidence that a specific, nonspeculative

impropriety has occurred”—the district court must hold an evidentiary hearing

prior to ruling on the motion for a new trial in order to adequately investigate the

alleged juror misconduct. See Cuthel, 903 F.2d at 1383.

Here, First Transit presented the District Court with “clear, strong,

substantial, and incontrovertible evidence that a specific, nonspeculative

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impropriety” occurred—namely, court documents that, on their face, showed that

Jurors Y.C. and E.S. gave dishonest and misleading responses on their juror

questionnaires and on voir dire. On the pre-voir dire jury questionnaire, for

example, neither Juror Y.C. nor Juror E.S. responded affirmatively to the following

question: “If you and/or a close family member or friend has ever been a party to a

lawsuit (i.e., sued someone or been sued by someone) please describe the

circumstances.” So, to show why these answers were dishonest, First Transit

provided the District Court with court documents demonstrating that “Juror YC

had been sued three times by banks to recover debts, twice in foreclosure, and once

by the State of Florida” and that “Juror ES was involved in one foreclosure, one

action by a condominium association to recover unpaid assessments, three cases

involving debt collection, and a personal bankruptcy.” These documents were

prima facie evidence “that a specific, nonspeculative impropriety” occurred, and

thus an evidentiary hearing to investigate the jurors’ responses was required.

But the District Court declined to hold an evidentiary hearing on the issue; it

simply concluded as a matter of law, based merely on the fact of the false

statements themselves and the lawyers’ representations about their import, that in

no case could the jurors’ misrepresentations suggest a lack of impartiality. By

failing to hold an evidentiary hearing on Jurors Y.C.’s and E.S.’s alleged

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misconduct before ruling on the new trial motion, the District Court abused its

discretion.

To understand why we reach this conclusion, it is necessary to examine the

specific missteps the District Court made. First, consider the issue of the jurors’

“dishonesty,” the first McDonough prong. On this prong, the District Court began

its analysis with Y.C.’s and E.S.’s answers to the jury questionnaire. Question 10

of the jury questionnaire stated: “If you and/or a close family member or friend has

ever been a party to a lawsuit (i.e., sued someone or been sued by someone) please

describe the circumstances.” The Torreses argued that this question was

ambiguous because “a party to a lawsuit” was defined as having “sued someone or

been sued by someone”—in other words, the question could be read to encompass

litigation involving only individuals, not corporations. Since the lawsuits in which

Y.C. and E.S. were involved were initiated by corporations or government entities,

not individuals, the Torreses claimed that the jurors may have believed that they

had not been sued by “someone,” but rather “something.”

The District Court found that the record evidence “certainly support[ed] the

Plaintiffs’ argument,” and thus it would have been reasonable to infer that Y.C.’s

and E.S.’s answers were honest. Nevertheless, the District Court simply

“assume[d] that the Jurors’ answers on the juror questionnaire were dishonest” for

the purposes of its analysis. This assumption was unnecessary and could have

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been entirely avoided—and any ambiguities could have been resolved—by holding

an evidentiary hearing in which the jurors themselves explained what they believed

the question meant.

Perplexingly, immediately after assuming that Y.C.’s and E.S.’s answers to

the juror questionnaire were dishonest, the District Court declined to infer that

Y.C.’s and E.S.’s answers to the questions posed on voir dire were dishonest.

Instead, the Court summarily concluded that involvement “in prior litigation does

not necessarily shape one’s view about the legal system,” and even if it did, “it

certainly does not necessarily follow that the juror believes that it has affected his

or her ability to serve as a fair and impartial juror.” But the fact that Jurors Y.C.’s

and E.S.’s views were “not necessarily” shaped by prior litigation, or that Y.C. and

E.S. were “not necessarily” rendered partial, nevertheless leaves open the

possibility that their views were shaped by prior litigation and that they were

rendered partial. Again, it is precisely these uncertainties that an evidentiary

hearing would resolve.

Second, consider the District Court’s approach to the jurors’ “actual bias,”

the second McDonough prong. On that prong, the District Court found no “close

connection” “[o]n the surface” between “this personal injury case stemming from a

car accident and any of the prior cases in which Juror YC or Juror ES was a party.”

The Court went on to conclude that there was “no evidence that Jurors YC or ES

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had a motive to intentionally omit” their litigation histories from the jury

questionnaire. But without an evidentiary hearing to dig beneath “the surface,” the

District Court simply could not know the jurors’ motives for failing to disclose

their litigation histories, the precise nature of the jurors’ prior cases, or whether the

jurors’ experiences in those cases left them so biased against the legal system that

they were unable (or unwilling) to impartially consider the evidence at trial.

Indeed, it is difficult to understand how First Transit could present any evidence of

the jurors’ motives for nondisclosure without first questioning the jurors at an

evidentiary hearing.8

Take, for example, First Transit’s argument that Y.C. and E.S.—who had

been sued on numerous occasions by large financial entities, the State of Florida,

and condominium complexes—were more likely to sympathize with the Torreses

given the trial’s “‘David versus Goliath’ atmosphere.” The District Court

considered First Transit’s argument but rejected it out of hand:

[T]he Court is not persuaded by Defendant’s attempt to link the present case and the cases in Juror YC’s and Juror ES’s past as involving a “David versus Goliath” atmosphere, causing the jurors to be biased against corporations. The Court finds little reason to presume that an

8 The District Court’s decision not to probe allegations of juror misconduct is of particular importance because of the ethical restrictions governing attorney communication with jurors. While a party’s counsel may communicate with a juror after a case has concluded “to determine whether the verdict may be subject to legal challenge” if counsel “has reason to believe that grounds for such challenge may exist,” R. Regulating Fla. Bar 4-3.5(d)(4), counsel may only do so with “leave of Court granted for good cause shown,” and the court may “limit the time, place, and circumstances under which the interviews may be conducted.” S.D. Fla. L.R. 11.1(e). 19 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 20 of 26

individual who had been sued by a bank to recover unpaid credit card bills, for example, would be biased against an unrelated corporation such as First Transit. An individual’s history of having been sued by corporations bears only a very general connection to a case in which an unrelated corporation is a defendant.

We first note that the jurors’ past lawsuits did not involve only “corporations”—

Juror Y.C. had been sued by the State of Florida, and Juror E.S. was subject to a

federal tax lien in which the IRS was the creditor. And, in any event, rather than

giving First Transit the opportunity to question Jurors Y.C. and E.S. to suss out any

possible biases against large corporations or other “Goliaths,” the District Court

simply assumed that Y.C.’s and E.S.’s previous lawsuits could not have, under any

circumstances, rendered the jurors biased against the legal system.

The District Court rationalized this assumption by noting that it questioned

all of the potential jurors on voir dire regarding (1) whether anyone felt that they

could not serve as a fair and impartial juror, (2) whether there was anyone that

could not follow the law after hearing what the burden of proof was in the case,

and (3) whether there was anyone that had “a belief, a feeling, or an attitude about

corporation[s], either for them or against them, that might cause [the juror] to treat

a corporation differently from an individual.” Since neither Y.C. nor E.S

responded affirmatively to any of these questions, the Court reasoned that the

jurors must have been “willing and able to be fair and impartial in this case.” But

it belies reality to assume that Y.C. and E.S. must have responded to the District

20 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 21 of 26

Court’s questions honestly when the Court was simultaneously confronted with

evidence that, on its face, demonstrated that the jurors were dishonest on their juror

questionnaires. In fact, this Court has stated that a “juror’s dishonesty is a strong

indication of bias,” Carpa, 271 F.3d at 967, so Y.C.’s and E.S.’s dishonesty on the

juror questionnaires militates strongly against the District Court’s assumption that

the jurors were unbiased.

Moreover, the District Court’s view of what constitutes a “close connection”

between Jurors Y.C.’s and E.S’s past cases and the present case is too narrow. In

finding that First Transit “failed to demonstrate bias,” the District Court stated that

First Transit did not present “specific facts showing such a close connection to the

litigation at hand that bias must be presumed.” To reinforce this conclusion, the

Court pointed to factual dissimilarities between “this personal injury case

stemming from a car accident and any of the prior cases in which Juror YC or

Juror ES was a party.” But despite these factual dissimilarities, it is entirely

possible that an evidentiary hearing would have revealed that Y.C.’s and E.S.’s

extensive experiences with civil litigation were sufficiently “close connections” to

the legal system that bias against the system itself—in other words, that the two

jurors were unable or unwilling to impartially consider the evidence at trial—could

be “presumed.” Id.

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We therefore conclude that the District Court’s failure to conduct an

evidentiary hearing constituted an abuse of discretion. The District Court needed

to take some action to “establish a sufficient evidentiary record either to determine

whether [the jurors were] honest and unprejudiced or to allow us to review the

determination,” but it did not. Carpa, 271 F.3d at 967. There is no way, based on

the bare record before us, that we could conduct a meaningful review of whether

the Court’s conclusions were correct. Accordingly, we vacate the District Court’s

order denying First Transit’s motion for a new trial and remand with instructions to

conduct an evidentiary hearing to determine whether the jurors made dishonest

statements during voir dire where a truthful response “would have provided a valid

basis for a challenge for cause.” McDonough, 464 U.S. at 556, 104 S. Ct. at 850.

We expect that the evidentiary hearing will address all facts relevant to

whether Jurors Y.C. and E.S. could have impartially considered the evidence

presented at trial and applied the law in accordance with the District Court’s

instructions. The District Court will need to determine (1) whether the jurors’

responses were dishonest as alleged, including both (a) their responses to the

questionnaire and (b) their silence in response to certain questions on voir dire; and

if so, (2) whether an honest response to the aforementioned questions would have

provided a basis to disqualify that juror from service, or whether the dishonest

response bears such a “close connection to the circumstances at hand” that the

22 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 23 of 26

juror’s eligibility for disqualification must be presumed. United States v. Perkins,

748 F.2d 1519, 1532 (11th Cir. 1984) (internal quotations omitted). We emphasize

that “[a] juror’s dishonesty is a strong indication of bias,” which would be

disqualifying, Carpa, 271 F.3d at 967, and that it is important to consider “the

specific information . . . concealed” in determining whether disqualification would

have been warranted, Perkins, 748 F.2d at 1532. And we note that bias can be

inferred in “situations in which the circumstances point so sharply to bias in a

particular juror that even his own denials must be discounted in ruling on a

challenge for cause.” Perkins, 748 F.2d at 1532 n.14 (quoting United States v.

Nell, 526 F.2d 1223, 1229 n.8 (5th Cir. 1976)).

The evidentiary hearing should include in-depth questioning of both Juror

Y.C. and Juror E.S. about the prior litigation in which each was involved. At a

minimum, the questioning should cover the facts of those prior cases; the identities

of the lawyers, parties, and judges; the jurors’ perceptions of the prior cases and of

the legal system as a whole; and the outcomes of the prior cases—that is, whether

the jurors prevailed or lost. The Court will need to determine whether the jurors

harbor any biases—including those against the legal system itself—that would cast

doubt on their fundamental ability to properly weigh the evidence and would

ultimately render them partial. We expect that the result of the District Court’s

hearing on remand will be a full elucidation of these factual issues.

23 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 24 of 26

When the evidentiary hearing has concluded, the District Court shall

determine whether a new trial is warranted on the ground that either of the two

jurors was challengeable for cause.

IV.

For the foregoing reasons, we vacate the District Court’s order denying First

Transit’s motion for a new trial and remand this matter with instructions that the

District Court conduct an evidentiary hearing in conformance with this opinion.

VACATED AND REMANDED WITH INSTRUCTIONS.

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U. S. DISTRICT JUDGE BETH BLOOM Juror Questionnaire in Civil Cases

Please answer fully all of the following questions:

1. What are your name and date of birth? ______________________; _____________________

2. Please describe your current employment, and past work history. ______________________________________________________________________________ ___ ___________________________________________________________________________

3. What is your educational background (i.e., grade school, high school, college, etc.). ______________________________________________________________________________

4. Please describe your spouse or partner=s current and past occupation and describe his/her educational background. ______________________________________________________________________________ ___ ___________________________________________________________________________

5. If you have any adult children, describe their level of schooling and/or employment. ______________________________________________________________________________

6. Have you served in the military? If so, please describe such service. ______________________________________________________________________________

7. Have you ever served on a jury before? If so, state how many times; the type of case; whether the trial was in state or federal court; if you reached a verdict and if you were the foreperson. ______________________________________________________________________________ ______________________________________________________________________________

8. Would you briefly describe any personal hobbies and/or interests you have? ______________________________________________________________________________

9. What newspapers and/or magazines do you read regularly? Also, what are your favorite T.V. shows and/or websites? ______________________________________________________________________________

10. If you and/or a close family member or friend has ever been a party to a lawsuit (i.e., sued someone or been sued by someone) please describe the circumstances. ______________________________________________________________________________ _

25 USCA11 Case: 18-15186 Date Filed: 10/20/2020 Page: 26 of 26

11. Do you participate in any organizations or groups (community, social, civil, union, religious, political)? _________ If yes, please state the name of the group and if you hold a leadership position. ___________________________________________________________________________ ______ ___

12. Is there anything in your background or personal feelings which might affect your ability to be fair and impartial to both sides? ______________________________________________________________________________ ___ ______________________________________________________________________________ ___ ______________________________________________________________________________ ___