Murphy v. Hurst

881 So. 2d 1157, 2004 WL 1749112
CourtDistrict Court of Appeal of Florida
DecidedAugust 6, 2004
Docket5D02-3047
StatusPublished
Cited by4 cases

This text of 881 So. 2d 1157 (Murphy v. Hurst) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murphy v. Hurst, 881 So. 2d 1157, 2004 WL 1749112 (Fla. Ct. App. 2004).

Opinion

881 So.2d 1157 (2004)

April MURPHY, Appellant,
v.
Martha C. HURST, M.D., et al, Appellee.

No. 5D02-3047.

District Court of Appeal of Florida, Fifth District.

August 6, 2004.
Rehearing Denied September 20, 2004.

*1158 James C. Blecke of Deutsch & Blumberg, P.A., Miami, and Brasfield, Fuller, Freeman, Lovell & O'Hern, Pa., St. Petersburg, for Appellant.

Richard S. Womble, David R. Kuhn of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees, Martha C. Hurst, M.D., and Orlando Health Care Group.

Thomas E. Dukes, III, G. Franklin Bishop, III, and Michelle M. Perez-Sotolongo of McEwan, Martinez & Dukes, P.A., Orlando, for Appellees, Richard S. Tejedor, M.D. & Central Florida Pulmonary Group, P.A.

THOMPSON, J.

April Murphy appeals a judgment for the defendants in a medical malpractice case. Murphy contends that she is entitled to a new trial because the court denied her mid-trial motion to strike a juror, who, it was learned mid-trial, may have been treated five or ten years earlier for what may have been asthma by a doctor associated with one of the defendant medical groups. We affirm.

Murphy sued two medical groups and two doctors, alleging that she had been misdiagnosed as having asthma and that she was injured by inappropriate doses of steroids over an extended period. Although only two doctors were named as defendants, several doctors from the two medical groups treated Murphy and were introduced during voir dire. The court asked the venire if they were acquainted with any of the doctors, and Juror Moore apparently did not raise her hand. Later, counsel asked the venire if any of them had ever had asthma. Juror Moore apparently did not raise her hand. After discussions with venire persons who responded affirmatively to the question, counsel asked: "Has anyone else had any problems associated with asthma," and Juror Moore apparently did not respond.

Apparently, Doctor Decker, who was associated with Central Florida Pulmonary Group, thought he recognized Juror Moore, and the group verified through its records that Moore had been its patient. Later, as the proceedings were about to begin, defense counsel suggested to the court that Juror Moore should be questioned. The following transpired after Juror Moore was brought to the courtroom:

*1159 THE COURT: Good morning, Ms. Moore, you may be seated. Ms. Moore, it has come to my attention that at some time several years ago, four or five years ago, you may have been treated yourself by someone at the Central Florida Pulmonary Group. Is that true?
JUROR MOORE: Uh-huh.
THE COURT: Did you forget about that during the voir dire?
JUROR MOORE: Yeah, since I haven't had any more.
THE COURT: Do you remember what doctor treated you?
JUROR MOORE: I think Arado (ph).[1]
THE COURT: And as a result of that treatment did you get better?
JUROR MOORE: Uh-huh.
THE COURT: And the reason that didn't come out during the examination when people asked whether or not any of you had suffered from asthma?
JUROR MOORE: Well, I just totally forgot about it since I haven't had it any more. But he did tell me that it would come and go. He said it might go away and it might come back and that's why he had gave me the inhaler, he said always have one with you. But I have one at work in the locker and one in my purse but I never had to use it since.
THE COURT: Okay. Counsel, approach the bench, please.
(A bench conference was had on the record.)
MR. DUKES [Defense counsel]: I would like to ask her a couple of follow-up questions if that's okay.
THE COURT: Like what?
MR. DUKES [Defense counsel]: I think she saw Dr. Decker, does she remember seeing him and like what was her asthma like.
THE COURT: Did you see any other doctors at the Central Florida Pulmonary Group?
JUROR MOORE: No.
MR. LOVELL [Plaintiff's counsel]: She might not know it was Dr. Decker.
MR. DUKES [Defense counsel]: Did she ever have a sleep study done?
THE COURT: Did you ever have a sleep study done?
JUROR MOORE: No.
MR. DUKES [Defense counsel]: I would like her to describe her asthma, what made her go see the doctors in the first place.
THE COURT: And do you remember what your asthma symptoms were that caused you to go to the doctor in the first place?
JUROR MOORE: I had bronchitis.
THE COURT: Bronchitis.
JUROR MOORE: That's what he said it was, a bronchitis. I told him I never had asthma before, he said it's just something that happens.
THE COURT: All right.
MR. DUKES: Does she remember — I mean does she remember a coughing, chest type wheezing, any of those things?
THE COURT: Any other symptoms?
JUROR MOORE: No.
MR. DUKES [Defense counsel]: Thank you.
THE COURT: All right. We'll let you go back out and let the whole jury come back in. Thank you.

Murphy's counsel did not question Moore. Defense counsel said that he *1160 would strike Juror Moore at the next break. The court responded that if the defense wanted to make a motion, it would have to be at once. At that, defense counsel for each of the two medical groups and defendant physicians announced that there was no objection to Juror Moore.

Later, after the jury was brought into the courtroom, Murphy's counsel approached the bench and the following ensued:

MR. LOVELL [Plaintiff's counsel]: I discussed the matter with co-counsel about the juror staying on the jury and we both came to the conclusion that it was fine. I neglected to conference with my client about that and she is upset with the woman staying on the jury and wants the woman removed from the jury so I don't think I have any alternative but to make a motion to remove her.
THE COURT: Does anyone want to be heard?
MR. DUKES [Defense counsel]: I don't think that it constitutes cause because I mean it was ten years ago, she forgot about it, her memory was refreshed. It seemed to be a trivial event, frankly. I even asked if she would describe it and it was bronchitis which is a different animal. There's nothing about what came out this morning that's going to influence this woman and I just don't think she needs to be removed. There's nothing here in my mind that constitutes deception. I think she genuinely forgot and there's nothing about that series of incidents that would make me feel that she tried to —
THE COURT: That's my impression as well so I'm going to deny the challenge for cause.

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Bluebook (online)
881 So. 2d 1157, 2004 WL 1749112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-hurst-fladistctapp-2004.