CHILDREN'S MEDICAL CENTER, P.A., THEODORE MORRISON, M.D., KENNETH BUDOWSKY, M.D., JACINTA MAGNUS, M.D., and NANCY CHIANG, M.D., Petitioners,
JAKYUNG KIM and YOOCHAN KIM, as parents and next friend of BABY SEAHYUN KIM, a minor, Respondents.
final until disposition of timely filed motion for rehearing.
Petition for writ of certiorari to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Mily Rodriguez
Powell, Judge; L.T. Case No. 09-055893 (03).
Stein and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld
& Stein, P.A., Miami, and Michael A. Petruccelli and
Steven A. Osher of Petruccelli & Osher, P.A., Fort
Lauderdale, for petitioners.
Goldfarb and David C. Appleby of Alan Goldfarb, P.A., Miami,
defendants in a medical malpractice action seek certiorari
review of a post-trial order granting juror interviews
following a defense verdict. The trial court granted the
plaintiffs' motion based on the alleged failure of two
jurors to disclose litigation history in their responses to
the jury questionnaire. The defendants argue the trial court
departed from the essential requirements of the law because
the plaintiffs failed to establish the three requirements for
granting juror interviews. We agree, grant the petition, and
quash the order.
plaintiffs filed a medical malpractice action against the
defendants, alleging a failure to diagnose their infant
son's skull fracture and brain bleed that were allegedly
related to his birth. Their child was delivered with the
assistance of a vacuum extraction device. Two weeks after his
birth, the child experienced a severe brain bleed. The child
underwent a craniotomy, but still suffered permanent
brain-related and neurological injuries. The plaintiffs
alleged the four defendant pediatricians should have
diagnosed the child's condition. Following a three-week
trial, the jury returned a defense verdict.
plaintiffs moved to interview three jurors: L.H., E.T., and
the alternate. They alleged L.H.
and E.T. failed to disclose their litigation history in
responding to the following question on the jury
Have you or any family member ever been sued or have you sued
someone else? (This includes suits which were settled after
being filed.) If so, please explain.
L.H. and E.T. both answered "No" to the question.
However, public records searches revealed that two
individuals with the same names (or similar marital names)
had previous encounters with the legal system. Records
revealed that L.H. sought to register a restraining order
against her ex-husband in California in 2008. The docket
characterized the nature of the case as "domestic
violence with children."
plaintiffs asserted that the concealment of that information
provided grounds to interview L.H. because "[a] salient,
if not dispositive issue" in their case was whether the
proximate cause of their child's injury was "child
abuse or so-called 'non-accidental trauma.'" The
plaintiffs claimed the defendants theorized pre-trial that
the child's injury was caused by abuse. They cited the
defense expert's deposition testimony. They noted the
trial court had ruled in limine that the expert could not
testify at trial that the child's injuries resulted from
a drop or knock on the head.
also revealed that E.T. was the respondent in numerous
"domestic violence" actions. The most recent
injunction was entered against E.T. in 2001. And a 2015
stalking case had been dismissed.
plaintiffs alleged the alternate "may have significant
information with respect to discussions amongst the jurors
contrary to this court's instructions."
counsel submitted two affidavits, attesting to his public
records search, and that the individuals in those records
were L.H. and E.T. The affidavits did not
state that he would have exercised peremptory strikes on L.H.
and E.T. had the information been disclosed.
plaintiffs also moved for a new trial, arguing juror
misconduct, and the verdict was contrary to the weight of the
evidence. The defendants responded that the plaintiffs failed
to demonstrate entitlement to juror interviews because the
alleged nondisclosures were not material, the information had
not been concealed, and plaintiffs' counsel was not
diligent in his inquiry during voir dire.
hearing on the motion for juror interviews, plaintiffs'
counsel argued he would have used his remaining peremptory
challenges on L.H. and E.T. had he known about the
jurors' domestic violence cases- assuming the cases
involved a child. The defendants argued the prior litigation
was too remote in time and it was not ...