Ottley v. Kirchharr

917 So. 2d 913, 2005 Fla. App. LEXIS 19292, 2005 WL 3327713
CourtDistrict Court of Appeal of Florida
DecidedDecember 9, 2005
DocketNo. 1D04-5309
StatusPublished
Cited by1 cases

This text of 917 So. 2d 913 (Ottley v. Kirchharr) 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
Ottley v. Kirchharr, 917 So. 2d 913, 2005 Fla. App. LEXIS 19292, 2005 WL 3327713 (Fla. Ct. App. 2005).

Opinion

THOMAS, J.

Appellants challenge the trial court’s order granting Appellee a new trial due to purported juror misconduct. We reverse because Appellee failed to demonstrate the juror concealed material and relevant information. Because we find that the trial court abused its discretion by granting Appellee’s motion for new trial, we reverse and remand for reinstatement of the jury verdict.

Factual and Procedural Background

Appellee sued Appellants for dental malpractice. Appellee suffered temporo-mandibular joint (“TMJ”) dysfunction and related facial injuries, which required extensive reconstructive surgery. Early in voir dire, Appellee’s counsel stated:

We allege that [Appellant Dr. Otley] dislocated [Appellee’s] temporomandibu-lar joint ... as a result of an extraction procedure ... [a]nd as a result it caused her to undergo four hospital surgeries and that she is due to have the fifth in the future to reconstruct her jaws. Now, knowing that that’s the type of case you are going to be hearing and knowing in advance that the damages in this case are tremendous, do you have any hesitancy ... as to whether or not you think you could be fair and impartial ... ?

(emphasis added). In response, a potential juror immediately informed the court that he had negative experience with dental care, and he was dismissed.

Counsel for Appellee proceeded to engage in a lengthy discussion with the veni-re regarding damages, caps on damages, prior experiences, and opinions regarding medical malpractice. Counsel thoroughly inquired about any connections the jurors or their families might have with the medical, dental, or legal profession. Counsel also had a discussion regarding the jurors’ prior dental experiences, and specifically asked if anyone had had a tooth pulled by a dentist or oral surgeon. Additionally, counsel inquired about whether any of the jurors had been diagnosed with TMJ dysfunction. After receiving no response, counsel asked the following question: “Has anybody ever had facial reconstructive surgery?” None of the potential jurors responded to the question.

Counsel did not explain, describe, or define what he meant by “facial reconstruction surgery.” Nor did counsel explain that he was inquiring about all types of procedures, including ones outside the context of his voir dire. He made no further references to “facial reconstructive surgery.” Instead, he discussed the anticipated trial structure and the fact that he was going to call dental and oral surgeons as expert witnesses. Counsel never referred to any plastic surgeons or issues regarding plastic surgery.

After a four-day trial, the jury returned a verdict in favor of Appellants. Appellee timely filed a motion for new trial and a motion to interview a juror, alleging that the juror failed to disclose that she “underwent cosmetic facial reconstructive surgery in the recent past.” (emphasis added). The trial court ordered that the juror be [916]*916interviewed by both parties in a deposition setting to determine whether the juror had previously undergone facial reconstructive surgery and, if so, the extent of that surgery.

The interview occurred several months after the trial. The juror responded that she had had a facelift under general anesthesia. She also had excess skin removed from her eyes, a cheek lift, an implant inserted in her chin, and laser skin treatment. She testified that she did not consider her procedures to be facial reconstructive surgery because they were done for purely cosmetic reasons. Neither her plastic surgeon nor his staff ever called the procedures reconstructive surgery.

The juror testified that she knew two people who underwent reconstructive surgery. One person’s face had collapsed and he required surgery to completely reconstruct his face; the other person was injured by an explosion and required metal plates to reconstruct his face. The juror testified that these were the types of procedures she considered reconstructive. The juror also stated that she did not make a connection between the phrase “facial reconstructive surgery” and her facial cosmetic surgery. Although the juror could not recall precisely what she thought when she heard Appellee’s question, she did not link the phrase “reconstructive surgery” to her facelift and chin augmentation. She stated that if counsel had asked whether any prospective juror had received a facelift, elective facial surgery, or a facial procedure, she would have answered yes. The juror testified that her experience of having a facelift and chin augmentation did not affect her decision in this case.

Appellee’s counsel filed an affidavit in which he stated that it was crucial to know whether a potential juror had “elective cosmetic surgery” versus “medically necessary reconstructive surgery.” Appellee’s counsel asserted that he “surely would have stricken” this juror from the panel with his remaining peremptory challenge.

After reviewing some photographs of the juror depicting her face before and after the facelift and chin augmentation, the trial court granted Appellee’s motion for new trial. The trial court noted that the average person would not consider a facelift as major reconstructive surgery. However, it found that the chin augmentation was reconstructive surgery. Based on the combination of surgical procedures to reshape the juror’s face, the trial court found that the juror did have facial reconstructive surgery. The trial court found that the undisclosed facts were material, that they were concealed by the juror, and that the failure to discover the facts was not due to lack of diligence by Appellee.

Analysis:

Did the Juror Conceal Material and Relevant Information?

This appeal is based on a single question which Appellee’s trial counsel asked the prospective jurors during an extensive voir dire examination focused on alleged dental malpractice involving a severely injured TMJ: “Has anybody ever had any facial reconstructive surgery ? ” (emphasis added). Appellee’s counsel did not ask any other questions relating to general facial surgery, cosmetic surgery, or specific questions about facelifts or facial implants.

In De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995), the Florida Supreme Court set out the following test for juror misconduct: “First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information [917]*917was not attributable to the complaining party’s lack of diligence.”

We first discuss the second prong of the De La Rosa test, as it is clear there can be no juror misconduct, regardless of materiality, when a juror correctly answers a voir dire question. Neither a facelift nor a chin augmentation is “reconstructive surgery” as defined or as commonly understood. No record evidence supports the conclusion that the juror gave false information by assuming that a single question regarding “facial reconstructive surgery” actually solicited information regarding cosmetic surgery. Because the juror did not conceal any information, we hold that the trial court abused its discretion in granting the new trial on this ground of juror misconduct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
917 So. 2d 913, 2005 Fla. App. LEXIS 19292, 2005 WL 3327713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ottley-v-kirchharr-fladistctapp-2005.